IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
BEFORE HIS LORDSHIP, HON.JUSTICE N.C.S OGBUANYA
SUIT NO: NICN/LA/554/2017
DATE: DEC. 14, 2018
BETWEEN:
- OKON EDET INYANG – CLAIMANT
AND
GEMINI PHARMACEUTICALS LTD – DEFENDANT
REPRESENTATION:
G.P Agbeotu, Esq- for the Claimant;
S.E Kadiri,Esq. – for the Defendant
JUDGMENT
The Claimant commenced this Suit vide a General Form of Complaintwith accompanied frontloaded processes dated and issued on 9th November 2017, against his ex-employer for recovery of the unpaid balance of his terminal entitlement , general damages and cost of the litigation.
The Claimant’s endorsed reliefs are for:
“ 1. Payment of the unpaid balance of entitlement N700,000.00
- N1,000,000.00 (one million naira) as general damages
- N200,000.00 as cost of litigation”.
Upon service, the Defendant though delayed but reacted with a Statement of Defence, Witness Statement on Oath of its sole Witness, List and Copies of the Defendant’s Documents sought to be relied on at the trial, all dated and filed 25th January 2018which was later regularized at the proceedings of 9th February 2018, having been filed and served out of time. Defendant therein denied the basis of Claimant’s claims and time line for payment. Claimant again in response, filed a Reply to the Defendant’s Statement of Defence dated and filed on 8th February 2018, disputing the purported resignation of the Claimant as alleged by the Defendant and insisted that the Claimant’s employment was terminated without due notice.
Having regularized the Defendant’s processes and the pleadings closed, the matter was immediately set down for trial. The Claimant who was the sole Witness for himself testified as Claimant’s Witness (CW). He adopted his Witness Statement on Oath deposed to on 9th November 2017 and tendered 13 sets of documents described in the Claimant’s List of Documents dated and filed on 9th November 2017, which were admitted in evidence and marked as Exhibits CE1-CE13, with ‘EXh.CE6’ additionally marked ‘Subject to Ruling’ due to the objection raised against its admissibility by the Defendant’s counsel, for allegedly not conforming with S.84 Evidence Act, but which was admitted Subject to Ruling, in line with the Case Management methodology of the Court, pursuant to Or.3 R.4(3)(b) NICN (Civil Procedure) Rules 2017.
From the pleadings and evidence led by the CW, the Claimant’s case is that he was employed as a Forklift Driver in 1992 by the Defendant, which was known then as Bayer Pharmaceuticals Ltd. That on 10th June 2006 while on his way home from work at about 7.30 pm, he was hit down by a tyre which pulled out from an ongoing truck and he became unconscious and was thereafter hospitalized. That it was his brother that catered for him and paid the medical bills amounting to N133,785.00, but that only the sum of N105,655.00 was refunded to his brother by the Defendant. And when he recovered, he returned to work but was not paid any insurance benefits. That he spent 20 years and 9 months meritorious service to the Defendant from 1992 to 17th October 2013, when the Defendant summarily retired him,via the Termination letter dated 17th October 2013 (exh. CE4).That by then his gross monthly salary was N41, 935.44. That his terminal benefits was calculated by the Defendant in its letter dated 10th November 2014, to be N1,512,230.95, out of N200,000.00 was paid as first installment, leaving a balance of N1,312,230.95(exh. CE7). That it was later in May 2015, the second installment in the sum of N312,270.95 was paid to him via a Union Bank cheque conveyed through the Defendant’s letter dated May 25 2015, leaving a balance of N1,000,000.00 (exh.CE8). That due to further delay to pay him the balance, he engaged the legal services of G.P Agbeotu Esq., who wrote a letter of demand to the Defendant dated 11th January 2016 (exh.CE9). That it thereafter, his said solicitor received another Defendant’scheque of N200, 000.00 through the Defendant’s Solicitor, S. Kadiri, Esq. That due to his absence in Lagos as he travelled to his home town and stayed for over three months, the said cheque dated 4/4/16 expired and his Soliciors wrote to the Defendant requesting for the revalidation of the cheque, via a letter dated 31st January 2017. The cheque was later re-validated and he cashed it on 6th February 2017 (exh.CE11), leaving a balance of N800, 000.00. That since that 6th February 2017, not until 13th October 2017, when he was called to collect another cheque of N100,000 .00 which he collected in the Defendant’s premises on 17th October 2017, leaving a balance of N700.000.00.
CW went on and testified that, due to the unreasonable act not delaying full payment of his entitlements since 2013 he left the services of the Defendant, he filed the Suit to seek for recovery of the balance of N700,000.00. CWfurther testified that he has become aged man and has relocated his family to his home town and only hanging around in Lagos waiting to collect his balance of entitlements. He narrated his accommodation challenges and accrued debt of N300, 000.00 owed to his Landlord, who has been pressurizing him to pay up.
CW was cross-examined by the Defendant’s counsel at the resumed proceedings of 20th July 2018, and his case was closed. The Defendant thereafter opened its defence through the Defendant’s sole Witness (DW), one Mr. Friday Iwenekha, the Human Resources Manager of the Defendant Company. He adopted his two Witness Statement on Oath deposed to on 25th January 2018 and Additional Defendant’s Witness Statement on Oath of 9th July 2018, respectively, and tendered 5 sets of documents, described in the harmonized Defendant’s list of Documents dated 9th July 2018, all admitted in evidence and marked as ‘Exhibits DE1-DE5’.
From the pleadings and evidence led by the DW, the case of the Defendant is that though the Claimant was employed by the Defendant as pleaded and testified to by the Claimant, it is the contention of the Defendant that the Claimant’s employment was not terminated by the Defendant, but that he resigned vide a letter of Resignation dated 17/10/2013 (exh.DE5). DW further testified that the Defendant did not refuse or neglect to pay the Claimant the said terminal benefit of N1,512,230.95, but even overlooked the one-month salary in lieu of notice, of which the Claimant ought to pay for his resignation. He explained that it was the financial difficulty the Defendant Company was experiencing that led to the delay. And that at the end , the Claimant was fully paid , vide cheque of N500,000.00 dated 11/12/17 (exh.DE2) and cheque of 200,000.00 dated 7/2/18 with the Defendant’s Solicitors’ letter dated 8th February 2018 (exh.DE3). And that the Defendant having paid the sum of N700, 000.00 being demanded in the suit by the Claimant the case has been satisfied, and should therefore abate.
DW was cross-examined by the Claimant’s counsel and the case closed. Final Written Addresses of both counsel were thereafter filed and exchanged.
COUNSEL’S SUBMISSIONS
Submissions by the Defendant’s Counsel:
ShuaibKadiri, Esq., learned Counsel for the Defendant, in his Final Written Address dated and filed on 9th August 2018, raised two issues for determination, viz:
- Whether the Defendant having paid the Claimant the balance of entitlement of N700, 000.00, whether it has put to rest the claim for balance of entitlement?
- Whether the Claimant is entitled to an order for general damages and costs?
On issue (1) – Whether the Defendant having paid the Claimant the balance of entitlement of N700, 000.00, whether it has put to rest the claim for balance of entitlement: It is counsel’s contention that by ‘exhs. DE1-DE4’, all evidencing the receipt of the total claimed sum of N700,000.00 by the Claimant , which was also admitted by the CW that he has received the N700,000 being the balance of his entitlement, that such an admission is sufficient proof of satisfaction of the said claim, and such should put the claim to rest. Counsel cited and relied on authorities on effect of admission on facts in issue at the trial, such as:Ekepemupolo v. Edremoda [2009] 8NWLR (Pt.1142)SC166; Iyere v. B.F.F.M Ltd [2008]18NWLR (Pt.1119)SC300@325, Para.D-E; Jokolo v. Governor of Kebbi State [2009]11NWLR (Pt.1152)CA394; Expo Ltd v.PasfabEnt. Ltd [1999]2NWLR (Pt.591)449 @462; Okaforv.A.GAnambra State [1991]6NWLR (Pt.200)689; Ss. 123, 124(1) (b) & (2) Evidence Act 2011.
On issue (2) -Whether the Claimant is entitled to an order for general damages and costs: Counsel submitted that it is the law that general damages are awarded by discretion of court which should be exercised judicially and judiciously. To Counsel, since the kernel of the suit (being the N700, 000.00 unpaid balance of entitlement), has been settled, there are ‘no substantiated facts proving the relief for damages’. And that it is for the Claimant to lead evidence, present and prove facts to be entitled to the damages sought. As pleadings do not constitute evidence. Counsel cited and relied on UTC Nigeria Ltd v. Samuel Peters [2009] LPELR8426 (CA); Iyere v. B.F.F.M Ltd [2008]18 NWLR (Pt.119)300 @325, para.C-D.
Counsel further argued that general damages is not awarded as a matter of course, but based on proved facts and as a matter of judicial discretion, which discretion the court is obliged to exercise judicially and judiciously.
On the aspect of cost, learned Defendant’s counsel contended that payment of cost underOr.55 R. 1 NICN (Civil Procedure) Rules 2017 is also a matter of judicial discretion. Citing and relying on Shukka v. Abubakar [2012]4NWLR (Pt.1291)497CA,to the effect that cost should not be punitive to the party who lost nor should it be a bonus for the party who won.
Counsel finally urged the court to dismiss the claims and hold that the Defendant having paid the N700,000.00 balance of the Claimant’s entitlements, there is nothing more to litigate upon in respect of the claim, and there are no established facts or proof of event upon which to exercise judicial discretion to award damages and cost.
Submissions by the Claimant’s Counsel:
On the part of the Claimant, learned counsel for the Claimant, G.P Agbeotu, Esq, submitted a sole issue for determination, viz: “Whether Claimant is not entitled to be paid general damages and cost by the Defendant in the circumstances of this case?” Canvassing arguments in support, counsel contended that by evidence consistently laid by the Claimant, particularly Exhibits CE3, CE4, CE5 and CE9, as well as admissions by the Defendant in its pleadings and Exhibits DE1-DE4, the Claimant has sufficiently satisfied the requirements of S.131 (1) Evidence Act 2011, in respect of standard of proof and discharge of burden of proof on him in civil claim.
Counsel contended that contrary to the submission of the Defendant’s counsel, the total claim in the Relief sought by the Claimant is N1, 900, 00.00 (inclusive of N1, 000,000 general damages and N200,000.00 cost of the action) and not only N700,000.00 substantive claim. Counsel argued that what was paid so far was the N700, 000.00 and the other sub-head claims are yet to be paid by the Defendant, and hence there are pending dispute on the unpaid sum.
On entitlement to general damages and cost, counsel submitted that the N1, 000,000 general damages being claimed by the Defendant is as a result of injury the Claimant has suffered by the Defendant’s act of refusing and neglecting to pay off the Claimant his calculated and agreed terminal benefit of N1,512,230.95, which delay led to his engaging a Solicitor to recover for him, when the unpaid amount was N1,000,000.00. Counsel pointed that by Exhibit CE4 the Claimant’s employment was terminated on 17th October 2013, but he was finally paid his entitlement on 7th February 2018, about 5 years after the termination of his employment.
Counsel further submitted that several correspondence were written and exchanged and the suit was later filed, in addition to the accommodation challenges the Claimant faced with the accumulated rent of N300, 000.00, which made him to relocate his family to the village, in addition to his poor health condition and lack of adequate welfare following the accident he sustained while in the Defendant’s employment. Counsel cited and relied on a host of cases on the application of the principles of award of general damages, such as: Ijebu Ode LG v. AdedejiBalogun& Co. [1991]1NWLR (Pt.166)136@142; Tom Total Limited v. Skye Bank Plc (2017) LPELR-41953(CA)Esabunor v. Faweya [2008] 12NWLR (Pt.1102); Afribank(Nig) Ltd v.M.Ent.Ltd [2008]12 NWLR(Pt.1098)223CA; Onagoruwav.IGP [1991]5NWLR (Pt.193)593@621.
Counsel also cited and relied on Or.55 NICN (Civil Procedure) Rules 2017; Ezeonu v. Agheze [1991]4NWLR (Pt.187) 631 @635; JimohOjugbelev.MusefiuLamidi&Ors. [1999]10 NWLR (Pt.621)167@172, to press for award of cost in favour of the Claimant, to serve as a recompense for expenses he had incurred in filing the action.
At the resumed proceedings of 11th October 2018, both counsel adopted their respective Final Written Addresses, and adumbrated on same, while urging the court to uphold their respective submissions on the issues slated for determination. The matter was thereafter reserved for Judgment.
COURT’S DECISION
I kept tab with the proceedings and reviewed processes filed and exchanged by the parties and listened to their respective Witnesses testify and watched their demeanor. I duly evaluated evidence on record and read the Final Written Addresses put forward by both counsel, particularly the legal issues for determination raised and canvassed therein.
To start with, let me first deal with the preliminary issue relating to the objection raised by the learned Defendant’s counsel, against admissibility of one of the documents sought to be tendered and relied on as Exhibits by the CW. As noted in the course of this Judgment, I had reserved Ruling on Admissibility of the said document tendered by the CW-Exhibit CE6 (additionally marked ‘Subject to Ruling’) given the objection raised against its admissibility, of which Ruling I deferred to this stage as an effective case management model pursuant to Or.3 R.4(3)(b) NICN (Civil Procedure) Rules 2017, which states: “ where the admissibility of a document contained in the schedule is objected to by the Defendant, the ground of objection shall be raised at the trial and the court may immediately or at judgment rule on the objection raised by the party to the admissibility of the document”.
Defendant’s counsel had objected to the admissibility of the document listed as No.6 (Claimant’s Pay Slip of Sept.2013) in the Claimant’s list of documents to be relied on at the trial dated 9th November 2017. The objection is on the ground thatproper foundation was not laid in line with S.84 Evidence Act2011, the said document being a computer-generated document. Learned Defendant’s counsel contended that it is inadmissible as its presentation falls short of the requirement of the Evidence Act on admissibility of electronic evidence. Learned Claimant’s counsel had responded that the said document is not computer-generated and therefore not covered by the prescription of the S.84 Evidence Act 2011.
This kind of objection has once again brought to the fore the obvious misconception by many a counsel, of the basic classification of documentary evidence, particularly electronic evidence. Let me state right away that it is not every document that passes through or is made by computer that is computer-generated within the meaning of S.84Evidence Act 2011. To add to the growing judicial pronouncements on this subject of admissibility of electronic evidence, I hasten to hold that only digital document ( such as e-mails, camera picture, etc.) can be classified as computer-generated to qualify as electronic evidence requiring compliance with the prescribed foundation to be laid for admissibility pursuant to S.84 Evidence Act 2011. To that end, the question is – what is the nature of the said objected document; the Claimant’s Pay Slip issued by the Defendant? A close perusal of the said document shows that it was typed in a computer and produced as original copy and given to the Claimant. With this in mind, it is pertinent to ask- has this document therefore become computer-generatedmerely because it was typed in and printed from a computer, as argued by the learned Defendant’s counsel?This is certainly not electronic evidence as envisaged by the provisions of S.84 Evidence Act 2011 requiring laying certain foundation for admissibility. Accordingly, this objection raised by the learned Defendant’s counsel is misconceived, and is hereby overruled. I therefore, confirm the admissibility of the said document as ‘Exh.CE6’. I so hold.
I now turn to the substantive issues raised for determination by both counsel.Learned Defendant’s counsel raised two issues while the Claimant’s counsel raised a sole issue. The Defendant’s two issues are-(1)whether the Defendant having paid the Claimant the balance of entitlement of N700, 000.00, whether it has put to rest the claim for balance of entitlement? And (2) whether the Claimant is entitled to an order for general damages and costs?The Claimant’s sole issue is– Whether Claimant is not entitled to be paid general damages and cost by the Defendant in the circumstances of this case?
I have reviewed the said issues submitted by both counsel and have pruned them to an all-encompassing sole issue, viz: Whether the Claimant has established his case to be entitled to the Reliefs sought? The Reliefs sought would be resolved along this sole issue for determination.
Relief (1) is for Payment of the unpaid balance of entitlement N700, 000.00. It is common ground between parties that this Relief has been satisfied since the Defendant completed payment of the balance of the N700,000.00 in the course of the proceedings. Both counsel stepped down this relief in their Final Written Addresses as having abated. The Claimant also confirmed and admitted this development both in his Reply to the Statement of Defence and under cross-examination. In Popoola v. Babatunde [2012] 7 NWLR (Pt. 1299) C.A 302 @ P 331, para. B, it was held that what is admitted need no further proof. See also: Adebiyi v. Umar[2012] 9 NWLR (Pt. 1305) C.A. 279@ P. 296, para. G-H,where the court held that:
“by virtue of section 75 of the Evidence Act, no fact need be proved in any civil proceedings which the parties thereto or their agents agree to admit at the hearing or which by any rule or pleading in force at the time they are deemed to have admitted by their pleadings”.
In the circumstance, this Relief ought to abate, and is hereby struck out, having been satisfied by the Defendant ahead of the judgment.
Relief (2) and (3) are forN1, 000,000.00 (one million naira) as general damages, and N200, 000.00 as cost of the litigation. The crux of the Claim for general damages as canvassed by the learned Claimant’s counsel is that the Defendant unduly delayed in payment of the Claimant’s terminal benefits since about 5 years after termination of his employment by the Defendant. And that the unreasonable delay had put the Claimant in state of penury such that he faced embarrassment of owing arrears of rent to the tune of N300,000.00, and relocated his family to village, while hanging around in Lagos awaiting completion of payment of the calculated entitlement of N1,512,230.95. Counsel vehemently contended that such acts of delay and the resulting circumstance of the Claimant particularly that while he was in the employment of the Defendant, he sustained injury which he has been nursing, resulting in his failing health conditions. Also, that it was at the point that the balance was remaining N1, 000,000.00 that the Claimant felt frustrated and was constrained to engage the services of counsel to recover the outstanding sum. Counsel submitted that the Claimant deserves compensation by way of award of general damages and cost of the litigation.
The Defendant’s counsel on his part had spiritedly argued that in so far the outstanding substantive claim of N700, 000.00 has been paid and admitted by the Claimant, there is no more dispute awaiting trial and thus, the reliefs on general damages and cost are unsubstantiated and unsustainable. Having paid the main claim of N700,000.00, as explained in its Paragraph 19 of the Statement of Defence dated 25th January 2018, and in Paragraph 21 of the said Statement of Defence, denied owing the Claimant any sum of money.
The Claimant reacted in Paragraphs 11and 12 of his Reply to the Defendant’s Statement of Defence, and stated that he claimed the total sum of N1,900,000.00 in the suit, and even though he received the said sum of N700,000.00, the amount did not cover the total amount in his Reliefs before the court. That remained the state of the evidence even after trial, and parties joined issues on whether or not general damages and cost of litigation could be awarded. Thus the resulting triable issue in my view is, whether the Claimant is entitled to general damages and cost in the circumstance of the case. Upon review of the pleadings and evidence adduced at the trial, I find that there was outstanding sum of N1,000,000.00 owed to the Claimant as at the time he engaged the services of counsel, and that the remaining balance of N700,000.00 outstanding as at the time the suit was commenced was paid off by the Defendant when proceedings in this matter had commenced. Also, that the debt spanned from October 2013 to January 2018, a period of about 5 years since the exit of the Claimant who left employment of the Defendant after putting in about 26 years of service as he was engaged by the Defendant’s predecessor company, Bayer Pharmaceuticals, in 1992.
The evidence on record shows that the Claimant’s assessed Terminal Benefit (which becomes immaterial whether he resigned or was terminated as differently contended by both parties) which came to a total sum of N1,512,230.95, was paid in about 5 protracted installments in 5 years period, from 2013-2018. See: “Exhs.CE4, CE5,CE7,CE8,CE9,DE1,DE2,DE3andDE4”. This is certainly unreasonable and not in accord with best practice of labour relations, and invariably constitutes a breach of the implied term of an employment that upon its severance requiring payment of terminal benefit, such should be settled with promptness, and not be allowed to unduly delay and paid in paltry staggered installments, as in the instant case.
The Claimant’s evidence of his ailing health condition resulting from injury he sustained while in employment of the Defendant, and poor living standard with inconveniences of accommodation problem, were not frontally denied or rebutted by the Defendant both at pleadings and trial stages. It is settled law that evidence which is unchallenged through neither cross-examination nor controverted by other evidence and is not itself incredible or inadmissible qualifies to be accepted and acted upon by the trial court. See: Omoregbe v. Lawani (1980) 3-4 SC 108 @117; Egbunike v. ACB Ltd [1995]2NWLR (Pt.375)34; Dennis Ivienagbor v. Henry Bazuaye [1999]9 NWLR (Pt.620)552 @558-559; Nzeribe v. Dave Eng. Co Ltd [1994]8NWLR (Pt.361)124@129.
I therefore believe the Claimant’s testimonies on the inconveniences he suffered for the delay in payment of his full entitlement after his exit from the Defendant Company.Although the Defendant’s counsel contested the basis of Claimant continuing with his relief for general damages having been paid the outstanding substantive sum, to my mind, these inconveniences narrated by the Claimant occasioned by the protracted delay in full payment of his severance entitlement, is the basis of his insistence for the court to still determinehis said claim for general damages, despite receiving the full payment in the course of the proceedings. Defendant had expected him to waive/abandon his two other reliefs but he felt otherwise, perhaps, to prove a point or test the legal regime/judicial attitude on the incident of that nature.
Unlike claim for Special damages, General damages are awardable per se upon breach, and the amount payable is based on the discretion of the court guided by the inferable estimate of the sum that could as far as money is concerned give reprieve to the injured party in line with the hallowed adjudicatory principle of ubi jus ibiremedium!. The rational for award of damages in litigated matter has been further elucidated in Shukka v. Abubakar [2012]4NWLR(Pt.1291)CA497, when the court stated: “The basic object of award of damages is to compensate the plaintiff for the damage or injury or loss he had suffered as a result of the action of the defendants, premised on the guiding principle of restitution in interregnum- that is, putting the plaintiff in a position in which he would have been, if he had not suffered the wrong for which he is being compensated”. In N.A.C.B Ltd v. Achagwa [2010]11 NWLR (Pt.1205) CA 339 @369.Paras. C-D,the court clarified how general damages are determined thus: “One the characteristics of general damages is that it is fixed by the opinion of the court, such as the law will presume to be the direct natural or probable consequence of the act complained of”. See also: Odumosu v. A.C.B Ltd (1976)11SC55; Samouris v. Maja [1996]7NWLR (Pt.460)336;Union Bank of Nigeria v. Alhaji Adams Ajabule&Anor (2011) LPELR- 8239(SC).
From the foregoing analysis, I find that there was undue delay in payment of the Claimant’s terminal benefits spanning for about 5 years between the time of his exit and time of last payment by the Defendant, resulting in this litigation. This unjustified conduct would certainly attract compensation in favour of the Claimant by way of general damages. Accordingly, I award the sum of N500, 000.00 (five hundred thousand naira) as general damages in favour of the Claimant.
On the issue of cost, it is imperative to clarify that cost of litigation awardable to a party by the court based on its discretional powers at the end of the proceeding, pursuant to Or.55R.1 NICN (Civil Procedure) Rules 2017, is not the same as cost claimed as substantive relief in the pleadings, as in the instant case. A simple distinction is that, whereas the cost awardable under the said Or.55R.1 is based on and is purely guided by the discretion of the court and not required to be pleaded,cost claimed as substantive relief ranks like special damages, which requires to be specially pleaded with detailed particulars and evidence led for entitlement before it can be granted.
I find that beyond putting the claim for cost of the litigation in the endorsement for claim in the Claimant’s pleadings, no further details were averred or evidence led at the trial to establish the entitlement to cost of the litigation, which was merely put in the Claimant’s pleadings to be N200, 000.00. Having failed to take such desirable step in the proceedings, this relief fails, and is accordingly discountenanced and dismissed. I so hold.
For clarity and avoidance of doubt, and on the basis of the reasons advanced in the body of the Judgment,the terms of this Judgment are as follows:
- The Claimant’s Reliefs (1) having been satisfied ahead of the judgment, abates, and is hereby struck out.
- The Relief (2) succeeds to the extent that N500,000.00 is hereby awarded as general damages in favour of the Claimant , for the undue delayin the payment of his severance benefits about 5 years after his exit from the Defendant Company.
- The Relief (3) fails. Same is hereby discountenanced and dismissed.
- Monetary payment in this Judgment shall be paid by the Defendant to the Claimant within two (2) months of this Judgment. Otherwise, 10% interest per annum shall accrue on the sums due until finally liquidated.
Judgment is entered accordingly. I make no order as to cost.
———————————————–
HON. JUSTICE N.C.S OGBUANYA
JUDGE
14/12/18
