IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
SUIT NO NICN/LA/98/2016
BEFORE HIS LORDSHIP, HON. JUSTICE (DR.) 1. J. ESSIEN
DATE: 14th November, 2019
SUIT NO: NICN/LA/98/2016
BETWEEN
- MOJEKWU KENECHUKWU O———————————— Claimant
AND
GLOBAL SCANSYSTEMS LIMITED ———————————- Defendant
REPRESENTATION:
- Agugua Esq. with I. C. Val-Ohakwe for the claimant
No representation for the defendant
JUDGMENT
By a complaint dated and filed on the 18/2/2016, the claimant sought the following reliefs from this court;
- An order to the defendant to pay to the claimant the sum of N2,076,762.39k (Two Million, and seventy six thousand seven hundred and sixty two thousand, thirty nine Kobo) being accumulated wages/salaries, allowances, leave grants and severance benefits from the 18th day of August, 2010 to the 29th day of September, 2015, being special damages.
- ALTERNATIVELY the sum of N475,685,63k (Four Hundred and seventy five Thousand, six Hundred and eighty Five sixty three Kobo) only being the sum agreed by the defendant to be due to the claimant pursuant to the letter of cessation of contract /employment dated the 29th day of September, 2015, issued to the claimant by the defendant as special damages.
- The sum of N5, 000, 000.00 (Five Million Naira) being general damages for breach of contract of employment, detention of the sum as stated in relief No 2 above and the cost of this suit.
The defendant was served with the complaint in this suit on the 24/3/2017. The defendant was initially represented by counsel. (Fortress Solicitors) However, the counsel did not file any defence un-behalf of the defendant in this suit. Hearing in this suit commenced on the 19/3/2019, with the claimant testifying as CW1. The claimant tendered the following documents in evidence in proof of his claims;
- The letter of offer of appointment dated 18/8/2010, Exhibit C1.
- Letter of confirmation of appointment dated 23/3/2011, Exhibit C2
- Letter of renewal of employment dated 1/6/2013, Exhibit C3
- Letter of Ceasation of Contract/Appointment dated 29/9/15. Exhibit C4
- Claimant diamond bank statement of account. Exhibit C5
- Claimant solicitor letter of demand dated 9/11/2015, Exhibit C8.
The claimant concluded his evidence in chief on the 19/3/2019, and the matter was adjourned to the 30/4/2019 for cross examination and defence. On that date the defendant was again absent likewise his counsel, despite the service of hearing notice on the defendant counsel, the defendant was foreclosed pursuant to Order 38 Rule 2(4) of the rules of this court. The matter was adjourned again to the 2/7/2019 for adoption of claimant’s final written address. On the 2/7/2019 the claimant counsel was absent in court however he had filed his final written address which was deemed adopted pursuant to the order of this court. The matter was adjourned to today for judgment.
BRIEF STATEMENT OF THE FACT OF THE CASE.
The claimant was employed by the defendant on the 31/5/2007. The appointment was confirmed on the 23/3/2011. The contract of employment was renewed on the 1/6/2013 for another period of six month, with a new salary structure. The claimant allege that the claimant noticed with utter dismay the discrepancies in the amount paid to the claimant as stated in the pay slip issued to the claimant. When the claimant observed that, he made several representations to the account department but nothing was done. In view of the above and many months of unpaid salaries and entitlements which ran into nine (21) months, the staff of the defendant, on the 16th day of September, 2015 had a general meeting wherein after the said meeting a letter was written to one Sir, Emeka Offor, a director of the defendant’s company complaining bitterly about their respective unpaid leave allowances, salaries, entitlement and unpaid end of the contract benefits on the destination inspection contract. The claimant allege that rather than attend to the complaint of its staff as contained in the letter of 16th September, 2015, the claimant was served a letter of ceasation of contract/appointment on the 29th September, 2015. The claimant latter caused his solicitors to formally demand the payment of the claimant accumulated wages which has remained unpaid hence this action.
From the facts and circumstances of this case, this court is called upon to determine whether the claimant has been able to proof his entitlement to the reliefs claimed in this suit.
ON RELIEF NO 1
In this relief the claimant claims the sum of N2,076,762.39k (Two Million, and seventy six thousand seven hundred and sixty two thousand, thirty nine Kobo) being accumulated wages/salaries, allowances, leave grants and severance benefits from the 18th day of August, 2010 to the 29th day of September, 2015, being special damages.
Throughout the entire statement of facts the claimant did not plead facts relating to how he arrived at the figure claimed in this relief. No evidence was also led in the witness deposition to establish claimant entitlement to the sum claimed. This claim is in the nature of special damages. For a party to succeed in a claim for special damages, such claim must be specifically pleaded and strictly proved. See the case of Salaudeen V. Oladele [2003]3 NWLR (Pt.806) at pg. 29. The claimant in this case has failed to discharge the evidential burden placed on him to proof his entitlement to the amount claimed in this relief. This relief therefore must fail. It is refused and accordingly dismissed.
ON RELIEF NO 2
The claimant in this relief claims the sum of sum of N N475,685,63k (Four Hundred and seventy five Thousand, six Hundred and eighty Five sixty three Kobo)k, in the ALTERNATIVE, being the sum agreed by the defendant be due to the claimant pursuant to the letter of ‘Cessation of Contract/Employment’ dated the 29/9/2015, issued to claimant by the defendant as special damages. The claimant in proof of this entitlement tendered Exhibit C1, C2, in proof of his employment status with the defendant. The claimant also tendered Exhibit C3 the letter of renewal of employment for a further 6 months period dated the 1/6/2013. The claimant testified that by a letter dated the 29/9/2015 titled ceasation of contract, tendered as Exhibit C4 the defendant terminated the employment and stated the claimant final entitlement to be in the sum of N N475,685,63k (Four Hundred and seventy five Thousand, six Hundred and eighty Five sixty three Kobo)k. The claimant also testified that he caused his solicitors to make a demand of the indebtedness in Exhibit C6. I have care-fully examined Exhibit C4. In that exhibit the defendant admitted owing the claimant the sum of N N475,685,63k (Four hundred and seventy five thousand, six hundred and eighty five sixty three kobo)k, as the claimant outstanding salaries, outstanding deductions and other entitlements. This is the sum which the claimant is making an alternative claims in this action.
The settled position of the law is that a court can only consider and award an alternative relief when it is practically impossible to award any of the items in the main relief. See the case of Holborn Nigeria Ltd. V. O. C. Chris Enterprises Ltd. [2014] LPELR-23972.
The main claim in this suit having failed, which I have earlier dismissed in this judgment, this is the appropriate case in which this court can award the alternative relief sought in this suit which proof has been offered by the admission contained in Exhibit C4. On the state of the evidence adduced in this suit and particularly the admission contained in Exhibit C4, this court hereby holds that the claimant has proved his entitlement to the sum claimed in the alternative relief. Accordingly judgment is hereby entered in the sum of N N475,685,63k (Four Hundred and Seventy Five Thousand, Six Hundred and Eighty Five Naira Sixty three Kobo)k in favour of the claimant against the defendant in this suit.
ON RELIEF NO 3
The claimant also claims the sum of N20,000,000 for breach of contract of employment and the detention of the sum in exhibit C6. The claimant in this suit has alleged that the defendant breached the contract of employment. The claimant however failed to specifically plead and offer proof of the alleged breach he is complaining of. In the absence of proof of the breach of contract, this court hereby holds that there is no breach of contract on the part of the defendant in this action. However, the claimant is also claiming damages on the grounds that the defendant withheld the entitlement of the claimant. There is some justification for the claim. I have carefully examine the pleadings and evidence before me, the claimant testified in paragraph 14 of his witness deposition that, since the termination of her employment, the defendant has refused to credit the claimant’s salary bank account as usual and the refusal to credit the claimant’s bank account has caused the claimant great hardship and financial embarrassment. The claimant pleaded her diamond Bank Account No. 0005895525. The claimant also pleaded the solicitor’s letter of demand tendered as exhibit C6. The claimant must have suffered some inconveniences by reason of the withholding of the entitlement of the claimant from 2015 up to today. The claimant is entitled to damages on the above premise. This court hereby awards the sum of N500,000 as general damages in favour of the claimant against the defendant.
On the whole this action succeeds in part. Judgment is entered in the following terms
1) The defendant shall pay the sum of N475,685,63k (Four hundred and seventy five thousand, six hundred and eighty five sixty three kobo) being the areas of salary and other entitlement of the claimant to the claimant.
2) The defendant shall also pay the sum of N500,000 as general damages for the unlawful withholding of the claimant entitlement
3) This judgment sums shall be paid within 30 days from today. Failure of which it shall attract interest at the rate of 5% until the final liquidation of the debt.
Judgment is entered accordingly.
___________________________________
Hon. Justice (Dr.) I. J. Essien
(Presiding Judge)
