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: 26TH SEPTEMBER, 2018
SUIT NO: NICN/YEN/119/2015
BETWEEN:
- JUDE
CLAIMANT
AND
SOUTH ATLANTIC MEDIA LIMITED
(OPERATORS OF 91.7 RADIO PORT HARCOURT)
DEFENDANT
REPRESENTATION:
Monima Karibi-Whyte for the Claimant
No representation for the Defendant
JUDGMENT
By a Complaint dated and filed on 28th October, 2015 together with a Statement of Facts dated 30th September, 2015 and filed on 28th October, 2015, the Claimant commenced this suit against the Defendant claiming the following reliefs:
- An order compelling the Defendant to pay to the Claimant the sum of Nine Hundred Thousand Naira (N900, 000.00k) only being unpaid six months salary from October 2013 to March 2014 at the rate of One Hundred and Fifty Thousand Naira (N150, 000.00k) per month.
- An order compelling the Defendant to pay to the Claimant the sum of Three Hundred and Fifteen Thousand Naira (N315, 000.00k) being unpaid pension allowance from August 2011 to March 2014.
- An order compelling the Defendant to pay to the Claimant the sum of One Hundred and Fifty Thousand Naira (N150, 000.00k) being unpaid two and half years leave bonus from August 2011 to March 2014.
- An Order directing the Defendant to pay to the Claimant the sum of Ten Million Naira (N10m) only as compensation for the undue and untold hardship caused by the refusal of the Defendant to pay the Claimant’s outstanding salary and allowances from October 2013 to March 2014.
- Interest on the said sum at the rate of 21% per annum from the date of judgment until full and final payment.
- And for such other order(s) as the Honourable Court may deem fit to make in the circumstances.
Upon service of the Originating Processes on the Defendant, the Defendant through its counsel Emmanuel O. Kalu, Esq of S. R. Dapaa-Addo & Co. Dolphin Chambers filed a Motion on Notice dated 14th December, 2015 but filed on 7th January, 2016, seeking for leave of court to extend time for the Defendant to file and serve its Memorandum of Conditional Appearance and to deem same as having been properly filed and served. From the records of the court, this application was never moved by the learned Defendant’s counsel; and since it was abandoned, it is hereby struck out.
Aside the application referred to above, the Defendant neither filed any process in defence of this suit nor put up any appearance throughout the proceedings of this suit before me despite the opportunities given to the Defendant.
The matter thereafter proceeded to trial on 21st of February, 2018, wherein the Claimant testified for himself as CW, adopted his witness deposition on oath made on 28th October, 2015, and tendered 3 documents which were admitted and marked as exhibits CW1A-C, CW2 and CW3A-B. At the conclusion of the witness’s examination-in-chief, and since the defendant was neither in court nor represented by counsel, the matter was adjourned to 9th of March, 2018 for cross-examination. The court ordered the defendant to be put on notice.
When the matter came up on 9th of March, 2018 for cross-examination of CW, the defendant was again not in court and was also not represented by counsel despite proof of service of hearing notice on the defendant. The court further adjourned the matter to 11th April, 2018 for cross-examination of CW and again ordered the defendant to be put on notice.
On the 11th of April, 2018, neither the defendant nor the counsel was in court to cross-examine the CW, and the court having been satisfied that the defendant was duly put on notice for the day’s proceedings, foreclosed the defendant from cross-examining the Claimant, and discharged the witness after which the Claimant closed his case. The case was then adjourned to 7th May, 2018 for defence.
When the matter came up on 7th May, 2018 for defence, the defendant was neither in court nor represented by counsel despite being put on notice for the day’s proceedings. The court in the circumstance, further adjourned the case to 5th June, 2018 for defence and again ordered the defendant to be put on notice.
On the 5th of June, 2018, both the defendant and counsel were again not in court and the court having been satisfied that they were served with hearing notice foreclosed the defendant from defending the suit and ordered parties to file their Final Written Addresses beginning with the Claimant. The matter was then adjourned to 17th July, 2018 for adoption of final written addresses.
On the 17th July, 2018 parties could not adopt their written addresses and the matter was adjourned to 19th July, 2018 for adoption. When the matter came up on 19th July, 2018, both the defendant and the counsel were not in court. The learned Claimant’s counsel adopted the Claimant’s Final Written Address dated 19th June, 2018 and filed on 22nd June, 2018, and urged the court to enter judgment for the Claimant.
The defendant however did not file Final Written Address in this suit.
The suit was subsequently adjourned to 26th September, 2018 for judgment.
THE CASE OF THE CLAIMANT:
It is the case of the Claimant that, he was employed by the Defendant on 26th July, 2011, as a producer in the defendant’s radio station known as Radio 91.7 Port Harcourt.
According to the Claimant, by the terms of his employment he was entitled to remuneration in the form of basic salary, rent allowance, transportation allowance, pension allowance and leave allowance but that the defendant paid the claimant only basic salary up till September, 2013, which were not even paid as at when due.
That the defendant made regular deductions in respect of leave allowances and pension from the claimant’s remuneration for years which were not settled by the defendant thereby subjecting the claimant to untold hardship which forced the claimant to resign his appointment with the defendant on 24th of March, 2014.
That the Claimant subsequently caused his Solicitors who wrote a demand letter dated 10th September, 2015 to the defendant demanding for specific performance and payment of outstanding salary and allowances owed the Claimant.
The Claimant therefore urged the court to grant the reliefs being sought in this suit.
As stated earlier in this judgment, the Defendant did not file any process in defence of this suit.
CLAIMANT’S SUBMISSIONS:
The Claimant submitted a sole issue for the determination of this court, to wit:
Whether the Claimant has proved his case to warrant judgment in its favour?(sic)
While arguing the sole issue identified for determination, the learned Claimant’s counsel submitted that, a cause of action has been defined as the entire set of circumstances giving rise to an enforceable claim. That it is every fact necessary for the petitioner to prove, if traversed in order to support his right to the judgment of the court. See Nigerian Communications Commission V. M.T.N. (Nig.) Comm. Ltd. (2008) 7 NWLR (Part 1086) 1 at 243, ratio 21, Attorney General of the Federation V. Abubakar (2007) 10 NWLR (Part 1041) 45 ratio 39, and Obigwe V. P.S.P.L.S. Management Consortium Ltd (2009) 3 NWLR (Part 1128) 378 at 384 ratio 5.
It was further submitted that, in civil cases as in the instant suit, the burden/onus of proof is on the party who asserts a fact as he who asserts must prove, and the standard of proof is that of preponderance of evidence and balance of probabilities. Daodu V. Nigerian National Petroleum Corporation (1992) 2 NWLR (Part 538) 355; Braimoh V. Abasi (1998) 13 NWLR (Part 581) 167; Audu V. Guta (2004) 3 NWLR (Part 864) 463 and Mani V. Shanono (2006) 4 NWLR (Part 969) 132.
That by the pleadings filed in this suit and the evidence led by the Claimant, the Claimant has discharged the onus of proof placed on him. That exhibit CW2 which has not been contested indicates when the Claimant’s employment with the defendant ended and the claimant is not claiming any sum beyond the period his services with the defendant ended.
That while exhibit CW1A-C established that the Claimant was employed by the defendant and worked for the defendant until his resignation, exhibit CW2 showed that the claimant was being owed by the defendant and that he resigned his appointment as a result of the defendant’s indebtedness to him. That the demand for the payment of the defendant’s indebtedness to the claimant was made vide exhibit CW3A-B.
That since the defendant did not defend this suit, it is deemed to have admitted the claimant’s case as any fact which has not been categorically denied or challenged by a party is deemed to have been admitted by that party. That the facts pleaded and presented by the Claimant remain unchallenged. See Ifeanyichukwu Okonkwo V. Federal Republic of Nigeria & Anor. (2011) 11 NWLR (Part 1258) 215 ratio 23.
On exhibit CW2 which the court ordered parties to address it on the probative value of the said exhibit since there is no proof that it was received by the defendant, it was argued that, even though there is no endorsement indicating the receipt of exhibit CW2 by the defendant, the claimant led evidence to show that the defendant’s representative who received exhibit CW2 refused to acknowledge same. And that since this piece of evidence like others was not challenged by the defendant even when the defendant had the opportunity to do so, the court should act on the unchallenged evidence. See G. S. Pascutto (Trading as Com-Est) V. Adecentro Nigeria Ltd. (1997) 11 NWLR (Part 529) 467; Judicial Service Commission V. Omo (1990) 6 NWLR (Part 157) 407; Mobil Producing Nigeria Unltd V. Monokpo (No.2) (2001) FWLR (Part 78) 1210 and Nzeribe V. Dove Engineering Ltd. (1994) 8 NWLR (Part 361) 124.
The Claimant’s counsel finally urged the court to grant all the prayers as contained in the Complaint with substantial cost against the defendant.
COURT’S DECISION
Having carefully considered the pleadings, Claimant’s testimony, exhibits and arguments/submissions of counsel for the Claimant, I am of the humble opinion that the sole Issue identified by the Claimant is comprehensive enough to determine the issues in controversy in this suit. I shall therefore adopt the said Issue distilled by the Claimant in determining this suit.
Before I delve into the consideration of the merit of the Claimant’s case, it is pertinent to state that at the hearing of this matter on the 21st of February, 2018, the court admitted the Claimant’s letter of resignation from the employment of the Defendant dated 24th March, 2014 as exhibit CW2, and directed the parties to address the court during final addresses on the weight or probative value to be attached to the said exhibit CW2 since there is no acknowledgement indicating that the said document was received by the Defendant.
The learned Claimant’s counsel Monima Karibi-Whyte Esq. submitted in the Claimant’s Final Written Address that, since the Claimant led evidence to the effect that the Defendant’s representative who received the said exhibit CW2 refused to endorse on the acknowledgment copy, and this piece of evidence was not controverted by the Defendant, the court should accept and attach relevant weight to exhibit CW2.
Having looked at the said exhibit CW2, it is clear that apart from it being pleaded, same is relevant to the facts in issue in this proceedings. It is the law that though relevancy generally guides admissibility, the fact that a document is relevant and has been admitted is not a guarantee that the court will attach significant weight or any weight at all to the said document. The party who tendered and relied on the document has the additional duty to give oral evidence to link the document to the part of his case for which the document is tendered.
In the case of Peoples Democratic Party V. INEC & Ors. (2011) LPELR-8831(CA), the appellate court per Tsammani, J.C.A. held as follows on the weight to be attached to a document:
“It is interesting to note that the Appellant tendered a cache of documents, to wit: the result sheets from the various polling units in an effort to prove that voters were disenfranchised. Unfortunately, evidence of disenfranchisement cannot be deduced from the result sheets declared.
Even where it can be done (which is not conceded) the party tendering those documents ought to call witness who will give oral evidence to explain or demonstrate how the disenfranchisement occurred. That is so because the law is that, the fact that a document has been admitted in evidence does not necessarily mean that significant weight or any weight at all, should automatically be attached to it without further proof. See Agballah V. Chime (2009) 1 NWLR (Pt. 1122) p. 373; Adefarasin V. Dayekh (2007) 11 NWLR (Pt. 1044) p. 89. Accordingly, a party who tenders such documentary evidence has a duty to adduce oral evidence to support same. In other words, documents, no matter how useful they could be, should not be of assistance to case of any party who tenders same or to the court, if there is no admissible oral evidence from the person who tenders it, explaining the purport of such document. A duty is therefore cast on a party who tenders and relies on documents in proof of his case to call oral evidence to specifically relate each document he tenders, to that part of his case for which the document is tendered. That duty does not lie in the court to fish for evidence for the party tendering it, from those documents. See Terab V. Lawan (1992) 3 NWLR (Pt. 935 p. 150; Eze V. Akoloage (2010) 3 NWLR (Pt. 1180) p. 183; Chime V. Ezea (supra) at pp. 380 – 381; Audu V. INEC (2010) 12 NWLR (Pt. 1212) p. 456 and A.N.P.P. V. INEC (2010) 13 NWLR (Pt. 1212) p. 549 at p. 597.”
From the court’s records, it is glaring that the claimant while giving evidence in this suit on the 21st of February, 2018, identified the said letter of resignation (exhibit CW2) as copy of the document he submitted at the Defendant’s office.
I am therefore of the humble view that since the Claimant has given oral evidence relating to the said document and such evidence was in no way challenged by the Defendant, it will be in the interest of justice for this court to rely on the said exhibit CW2 in this judgment. I so hold.
I shall now consider the merit of the Claimant’s suit before the court.
May I state from the onset that the Claimant’s employment with the Defendant is clearly not in doubt. Exhibit CW1A-C clearly shows that the Claimant was employed by the Defendant on 26th July, 2011 as Producer with effect from 1st August, 2011.
The Claimant’s case before the court has nothing to do with termination of appointment but rather the Claimant is claiming the payment of unpaid earned wages for some of the period he worked for the Defendant until his resignation from the employment of the Defendant on 24th March, 2014.
The Claimant gave evidence to the effect that he was employed by the Defendant vide exhibit CW1A-C on 26th July, 2011 as Producer in the Defendant’s Radio Station known as Radio 91.7 Port Harcourt. He worked for the Defendant until he resigned his appointment vide exhibit CW2 on 24th March, 2014 due to the failure of the Defendant to pay him his salary and arrears for six (6) months. He thereafter instructed his Solicitors who wrote exhibit CW3A-B addressed to the Defendant demanding for the payment of the Claimant’s entitlements to no avail.
Exhibit CW1A-C which provides for the Claimant’s terms of employment is hereby reproduced for the purpose of clarity:
SOUTH ATLANTIC MEDIA LIMITED
(OPERATORS OF 91.7 RADIO PORT HARCOURT)
26th July, 2011
OZIOKO JUDE
No. 1, Second Avenue, Eastern By-Pass,
Port Harcourt.
Dear Mr. Ozioko,
OFFER OF APPOINTMENT
We are pleased to inform you that your appointment as PRODUCER has been approved with effect from 1st August, 2011.
This appointment requires your utmost diligence and passion for excellence in order to ensure organizational as a team leader and player.
DUTIES
Your duties include.
- To produce radio and other recordings
- To preview and edit recorded data
- To supervise production
- To maintain the studio and supervise recording
- To plan, monitor, supervise all production, recording activities and assistants
AS ON AIR PERSONALITY YOUR DUTIES ALSO INCLUDE:
- Production and presenting creative advertorials and commercials for clients
- Representing and promoting the station in clients’ public events
- Engaging in live broadcast of events
- Creating content for production
- Enhancing and promoting the corporate image of the station in all your dealings
- To be available for any other related assignment.
REMUNERATION
Your remuneration is as illustrated below:
Annual
Basic Salary: N900, 000.00
Rent allowance N450, 000.000
Transportation Allowance N112, 000.00
Others N337, 500.00
TOTAL N1, 800, 000.00
*Statutory contribution to selected Pension Fund Manager
**Leave allowance is payable in whole once yearly. See staff handbook.
NOTICE PERIOD
In event of leaving the organization, you are required to give a minimum of one month’s notice in writing or salary in lieu.
PROBATION
Your probation period is six months with effect from 1st August, 2011, after which your performance shall be appraised and your appointment confirmed based on satisfactory feedback.
WORK HOURS
Official work period starts 8am to 5pm Monday to Friday including public holidays. However, due to the peculiarity of our industry your time of duty remains flexible and subject to shifts as may be determined by the company.
DRESS CODE
The company’s dress code is formal on official hours.
I hereby on behalf of the company congratulate you on this appointment and request the following:
- Sign and return the attached copy of this letter to confirm your acceptance
- Ensure submission (if pending) of the following details within two weeks:
- Curriculum Vitae
- Credentials
- Two completed guarantors’ forms
- Letter of recommendation from your immediate former employer (or school in case of first employment)
Employees’ terms of reference are contained in the staff handbook and we encourage you to obtain a copy from the Head of Admin.
On behalf of the board and management, congratulations!
For: South Atlantic Media Ltd.
Kester Buzugbe
Chief Operating Officer
It is clear from exhibit CW1A-C reproduced above that, the remunerations of the claimant were clearly captured and enumerated. A worker is entitled to his wages hence there is an obligation on every employer to ensure that employees are paid wages for services rendered.
See Ogiamien V. Gulf Manning Services Nig. Ltd (2016) 66 N.L.L.R. (Part 235) 210.
The Claimant has informed this court that he is being owed arrears of salary and allowances by the Defendant from October, 2013 to March 2014 when he resigned his appointment with the Defendant.
This piece of evidence and the general evidence given by the Claimant in this suit have neither been challenged nor controverted by the Defendant. It is the law that, where an evidence remains unchallenged or uncontroverted by the opposing party who has the opportunity to controvert the evidence, the trial court has no option but to believe the evidence and act on same.
See the case of A. I. Egbunike & Anor. V. African Continental Bank Ltd. (1995) LPELR-1039(SC), where the apex court held thus on the effect of an unchallenged evidence:
“Evidence which is unchallenged and uncontradicted, if credible, ought to be accepted as there is nothing on the other side to balance. See Adejumo V. Ayantegbe (1989) 3 NWLR (Pt. 110) 417. Further, if the evidence led on the facts pleaded is admissible, relevant, uncontroverted and not discredited by cross-examination, a court can legally rely and act on it .”
See also Adepeju Odunsi V. Azeez Bamgbala & Ors. (1995) LPELR-2248(SC).
The defendant in this case neither filed any process in defence of this suit nor gave evidence to contradict what the Claimant told the court. In the absence of any contradictory evidence by the Defendant, I have no option than to accept and rely on the evidence of the Claimant in this suit.
In the circumstance, I belief the Claimant’s testimony which was buttressed by exhibits CW1A-C, CW2 and CW3A-B, that the Defendant owes the Claimant six (6) months outstanding salaries and wages for services rendered from October, 2013 to March, 2014. The Claimant is therefore entitled to receive his earned wages.
I shall now consider the reliefs being sought by the Claimant in this suit.
On relief one (1), it is observed that by the contract of employment exhibit CW1A-C, the claimant was expected to give the defendant a minimum of one month’s notice in writing of his intention to leave the defendant or salary in lieu of notice. By exhibit CW2, the Claimant who resigned his appointment with the Defendant on 24th March, 2014, without giving the Defendant the required one month’s notice clearly indicated that he was forfeiting his salary for the month of March, 2014 ostensibly as salary in lieu of notice. That being the case, one month’s salary shall be deducted from the Claimant’s six (6) months’ arrears of salaries to serve as one month salary in lieu of notice. The sum of One Hundred and Fifty Thousand Naira (N150, 000.00) shall be deducted from the sum of N900, 000.00) as one month salary in lieu of notice. The Claimant is therefore entitled to five (5) months’ arrears of salaries which is put at the sum of Seven Hundred and Fifty Thousand Naira Only (N750, 000.00) being the Claimant’s outstanding remuneration from October, 2013 to February, 2014. The salary of March, 2014 will serve as the salary in lieu of notice.
Relief two (2) relating to the payment to the Claimant of the sum of Three Hundred and Fifteen Thousand Naira (N315, 000.00K) as unpaid pension allowance from August, 2011 to March, 2014, is refused as the Claimant has not shown through evidence or otherwise that he is entitled to this sum of money. Moreover, since pension is now contributory by law, same cannot be paid directly to the Claimant as the Claimant did not inform the court that he registered with a Pension Fund Administrator (PFA) for the purpose of pension remittances. Relief two (2) is therefore refused.
On relief three (3) which is for the Defendant to pay the Claimant the sum of One Hundred and Fifty Thousand Naira (N150, 000.00) being unpaid two and half years leave bonus from August 2011 to March, 2014, I am not satisfied that the Claimant is entitled to this relief. The amount is neither provided for in the employment letter (exhibit CW1A-C), nor did the Claimant give evidence on how he arrived at the said amount of N150, 000.00 as unpaid leave bonus for two and half years. Relief three (3) is therefore refused.
Relief four (4) is for an order of court directing the Defendant to pay the Claimant the sum of Ten Million Naira (N10, 000, 000.00) as compensation for the undue and untold hardship caused by the Defendant’s refusal to pay the Claimant’s outstanding salary and allowances from October, 2013 to March, 2014. Again, the Claimant did not establish before the court the kinds of ‘undue and untold hardship’ he suffered as a result of the non payment of his salary and allowances by the Defendant. It is not within the realm of the court to speculate and assume that simply because his salaries were not paid as at when due he suffered untold hardship. The Claimant failed to establish this leg of the claim. Consequently, relief four (4) is hereby refused.
In all, the Claimant’s case succeeds in part, and for the avoidance of doubt the court hereby orders as follows:
- The Defendant shall pay to the Claimant the sum of Seven Hundred and Fifty Thousand Naira Only (N750, 000.00) being the Claimant’s five (5) months’ arrears of salaries/outstanding remuneration from October, 2013 to February, 2014.
- Cost of this suit is assessed at the sum of Three Hundred Thousand Naira Only (N300, 000.00) to be paid by the Defendant to the Claimant.
- The terms of this judgment shall be complied with not later than 30 days from the date of delivery failing which they shall attract interest at 10% per annum.
Judgment is entered accordingly.
Hon. Justice P. I. Hamman
Judge
