LawCare Nigeria

Nigeria Legal Information & Law Reports

National Industrial Court

Mr Olusegun Michael Adeyinka -VS- Nigeria Wire & Cable Plc

admin 0

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE IBADAN JUDICIAL DIVISION

HOLDEN AT PORT HARCOURT

 

BEFORE HIS LORDSHIP HONOURABLE JUSTICE F. I. KOLA-OLALERE

 

Date: January 08, 2019                   Suit No: NICN/IB/43/2012

 

Between:

 

  1. Mrs Deborah A. Adeyinka
  2. DrAdeyosola O. Adeyinka
  3. Mr Samuel A. Adeyinka
  4. Mr Samson A. Adeyinka                                                           —————–    Claimants

(As Executors and Trustees of the Estate of

Olusegun Michael Adeyinka) (Substituted by

the Order of court made on 9-11-2018)

 

And

Nigerian Wire and Cable Plc.                                 ——————————–       Defendant

Representation:

AdewaleAdegoke and A.A Ahmed for the claimant

Defendant’s counsel absent. No letter

 

COURT’S JUDGMENT

 

  1. This is a transferred case from the High Court of Justice Oyo State, Ibadan Judicial Division,It was filed on November 18, 2008 at that Court before it was transferred to this Court on December 21, 2011. The parties regularized their processes in line with the Rules of this Court and by his complaint; the claimant is claiming the following reliefs from the defendant:

(a)              A brand new Mercedez Benz car

(b)              The sum of N38,854,051.95 being the terminal benefits due to the Claimant from the Defendant.

PARTICULARS

(i)                Six months’ salary in lieu of notice- N1,480,250.00

  1. Money expended at the request and on behalf of the Defendant- N4,045,380.00

(ii)             Ten months arrears of salary                                  – N3,035,962.37

(iii)           Total emolument                                      –  N21,210,000.00

(iv)           Others                                                                     –   N9,082,459.58

TOTAL                                                           –   N38,854,051.95

 

(c)              20% interest on the above-stated sum from the time of the Claimant’s retirement on 31st December, 2003 until judgment is delivered in this suit.

(d)           10% interest from judgment until the final liquidation of the judgment sum.

Other initiating processes were filed along with the complaint in line with the Rules of this Court. In response, the defendant entered appearance through its counsel and filed its statement of defence together with other processes as required by the Rules of this Court.

  1. On March 12, 2015 counsel to the parties; Mr. AdewaleAdegoke for the claimant and Mr. T. Idenyi for the defendant agreed to consolidate this case together with three other sister cases with Suit Nos: NICN/IB/40/2012 to NICN/IB/42/2012; thereby using the case with Suit No: NICN/IB/40/2012 between Mr. Julius TaiwoFaroun v. Nigeria Wire and Cable Plc.as test case. See the proceeding of this Court on that day at pages 43 to 45 in the case with Suit No: NICN/IB/40/2012. From that day, the proceedings of Court in Suit No: NICN/IB/40/2012 abides in the other sister cases with Suit Nos: NICN/IB/41/2012 to NICN/IB/43/2012 until on April 26, 2018 when the matter came up for adoption of final written addresses of counsel and the claimant’s counsel; Mr. Adegoke adopted his final written addresses on the three cases.

Thereafter, Mr. Adegoke informed the Court that the claimant in the present case with Suit No: NICN/IB/43/2012 died and he asked for an adjournment to enable him bring the necessary application. On May 9, 2018 the claimant’s counsel informed the Court that they have commenced the processes of obtaining probate letter in respect of this case and that it will take time before that is completed. Therefore, he prayed the Court to give judgment on the remaining three cases with Suit Nos: NICN/IB/40/2012 to NICN/IB/42/2012 and that when they have obtained probate letter on the present case with Suit No: NICN/IB/43/2012; he will comply with the provision of Order 10 Rules 2 & 3 of the NICN (Civil Procedure) Rules, 2017 and re-adopt his final written address. This Court eventually gave judgment on the remaining three cases with Suit Nos: NICN/IB/40/2012 to NICN/IB/42/2012 on July 18, 2018 in Ibadan. On October 25, 2018 the claimant’s counsel, Mr. A. A. Ahmed moved his application to substitute the deceased claimant with his wife; whom he had appointed as the head of his family and his 1st three children who are also the Executors of his Estate in his Will. This application was granted and the claimants’ counsel then re-adopted his final written address on this case before the case was adjourned for judgment.

  1. CLAIMANT’S CASE AS PLEADED

The case of the claimants is that their deceased Husband and Father, (Mr. OlusegunMichealAdeyinka) was employed in November 1982 by the Defendant as a Sales Manager and that after series of promotions; he became its Managing Director. They aver further that deceased was on this post in December 2003, when senior members of the Board of Directors of the Defendant approached and persuaded him to turn in his retirement letter in order to pave way for intending new investors who had allegedly insisted that they have a controlling interest in the Defendant. Hence,the deceased resigned from his appointment with the Defendant as a sacrifice to resuscitate the Defendant while the defendant undertook to pay his terminal benefits (including other entitlements) latest within thirty days from his resignation. Regrettably however, his terminal benefits remained unpaid despite repeated demands;therefore, he instituted this case against the company for his entitlements before he died.

DEFENDANT’S CASE AS PLEADED

The case of the defendant on the other hand, is that the deceased/Claimant was an ex-staff of the defendant who resigned from his appointment with the defendant on December 31, 2003. the company pleaded further that the conditions of service relied upon by the deceased were made by him and his colleagues without the authority of the Board of Directors of the defendant and its shareholders in a general meeting; and so, it was fabricated and concocted by the deceased/Claimant in cohort with other management staff to defraud the defendant. The defendant further avers that the deceased/Claimant voluntarily resigned his appointment from the defendant company; having ran the defendant company aground in conjunction with other management staff particularly, to take undue benefits of the alleged Conditions of Service unauthorized by the Defendant. It continued that the defendant never made any promise to pay the deceased/Claimantneither did defendant receive any letter of demand from the deceased/Claimant.

  1. During hearing of the case, the claimant in Suit No: NICN/IB/40/2012 testified as CW1 while one Mr. KazeemOgunpaimo and Mr. Peter RotimiOyeAdewoye testified on his behalf as CW2 and CW3 respectively. The defendant’s counsel; Mr. OgbonnawaChukwumerije cross-examined CW1 & CW2 but did not cross-examine CW3 without any explanation, despite several adjournments granted him for that purpose. Therefore, the Court discharged CW3 on September 25, 2017 based on the application of the claimant’s counsel. The matter was then adjourned a couple of times for defence but the defendant and its counsel again failed to avail themselves of these opportunities. Hence, on December 7, 2017; the Court ordered the closure of defence to this case, directed counsel to the parties to file their final written addresses and adjourned the matter for adoption of addresses. Still, the defendant’s counsel did not file any address but the claimant’s filed his final written address.

 

  1. WRITTEN ARGUMENTS OF THE CLAIMANT(S)

In his final written address, the claimant(s)’ counsel framed one issue for determination by the Court this way:

Whether in view of the evidence before the court; oral and documentary, the Claimant has not established his case to be entitled to the grant of his claim.

Arguing this issue, counsel stated that in addition to the documents relied on by the claimant and his witnesses as exhibits, the claimant’s case is also founded on oral evidence of his three witnesses; that of the claimant in Suit No: NICN/IB/40/2012 as CW1,KazeemOgunpaimo as CW2, and Peter RotimiOyeAdewoye as CW3.  To counsel, all that the Court is required to do in a civil suit is to put the evidence adduced by each of the parties on each side of the imaginary scale of justice and to observe which one outweighs the other so that judgment could be given in favour of the party with weightier evidence. Counsel noted that the defendant in the instant case did not call any witness and that the deposition of its proposed witness was not adopted at trial as evidence. Therefore, counsel urged the Court todeem the deposition as having been abandoned and to discountenance same, citing B.S. (Nig.) Ltd v.Ometraco Int’l Ltd [2011] 10 NWLR (Pt. 1255) 290 at 303 para E.

 

Counsel continued that where only a party adduces evidence but the other does not, the Court is to determine whether that unchallenged evidence is credible, cogent and reliable enough to found the grant of the claim of the claimant, citing N.S.I.T.F.M.B. v.Klifco Nig. Ltd [2010] 13 NWLR (Pt. 1211) 307 at 332 paras A-C.He maintained that the evidence of the three witnesses of the claimant were in line with his pleadings. Histotal evidencewas on when he was employed, the different offices/position he held and the promotions he held until his voluntary retirement in December 2003 as Managing Director of the defendant. He went on that the claimant’s evidence also show how the defendant became indebted to him and the amount of money so owed to him; which is the subject matter of this suit.

 

  1. Counsel contended further that the Condition of service for Management staff of the defendant at page 240 of the record; which is the same as Document C.14 before the Court in Suit No: NICN/IB/40/2012 contains provisions for annual leave allowance, lunch subsidy, transport allowance, housing allowance, children education allowance, staff retirement benefit scheme, gratuity, furniture allowance, among others. That, it was on the basis of this document that the Document containing statement of the claimant’s final entitlements at page 246 of the record was made, which puts the entitlements of the claimant at N34,808,671.98. To the claimant’s counsel, these entitlements excluded other debts owed to the claimant by the defendant, of which when added to the ones stated above will bring his total entitlements to the sum of N38,854,051.95. CW2 in NICN/IB/40/2012 was a former Accountant in the Accounts Department of the defendant. His testimonyshowed detailed analysis on how the total sum contained in statement of the claimant’s final entitlement at page 246 was arrived at.

 

  1. Counsel again submitted that it is the law that where material evidence as given by a party to any proceedings was not challenged or rebutted by the opposing party who had the opportunity to do so, it is always open to the Court seized of the matter to act on such unchallenged evidence before it; citing Insurance Brokers of Nigeria v ATMN [1996] 8 NWLR (Pt. 466) 316 at 327 para G. Counsel maintained that the evidence of both CW1 and CW2 were not controverted in any way. In fact, that CW2 was unshaken during his testimony. His evidence; which showed candour, deep expertise and a firm understanding of the accounting system of the defendant especially as it relates to calculating the benefits owed to each staff including the claimant was not challenged throughout cross-examination.

In addition, counsel argued that it is a sacrosanct principle of law that where there is no oral and/or documentary evidence to show that the facts pleaded are true, such pleading without evidence in support thereof is worthless, citing Cameroon Airlines v.Otutuizu[2011] 4 NWLR (Pt. 1238) 512 at 544 Para G, and urged the Court to so hold.

  1. In the alternative, counsel argued that assuming without conceding that the Court can even countenance the defendant’s pleadings and the depositions of her proposed witness as contained in the witness’ statement of oath; he submitted that the evidence is not weighty enough to fault or frustrate the claim of the claimant.  To counsel, although the claimant was alleged to have fabricated and concocted the conditions of service he is now relying on in this case together with some other Management Staff of the defendant yet; no petition written against him for forgery neither was he reported to the police for this allegation besides, the defendant did not tender any other condition of service in evidence as the authentic one.

Counsel submitted that where a party does not deny the existence of a document but only says that it is not the right one, he has a duty to produce the authentic one, citing Audu v. INEC (No. 2) [2010] 13 NWLR (Pt. 1212) 456 at 521 paras E-G. He submitted further that where a party alleges a crime in his pleadings as the defendant has done in paragraphs 5, 6 and 14 of its statement of defence, it is the duty of such party to prove the allegation beyond reasonable doubt pursuant to section 138 of the Evidence Act, 2011; failure of which such allegation shall fail in its entirety, citing Biezan Exclusive Guest House Ltd v. Union Homes Savings & Loans Ltd [2011] 7 NWLR (Pt. 1246) 246. He went on that where the claimant has adduced admissible evidence, which is satisfactory as in this case, and none is available from the defendant, the case will be decided upon a minimal proof. To him this makes the burden of the claimant lighter since all that the defendant in this case has before the court is a mere paper tiger, which cannot take the place of evidence, citing Adeleke v.Iyanda[2001] 13 NWLR (Pt. 729) 1 at 23-24 paras H-A.

Counsel finally urged the Court to hold that on the balance of probabilities, the claimant has satisfied the Court to be entitled to the grant of his prayers and to also resolve the only issue formulated in favour of the claimant(s) and against the defendant.

  1. COURT’S DECISION

I have gone through the facts of this case as pleaded by the parties, the written arguments of the counsel to the claimants and his cited authorities. From these, I am of the considered view that the following issues are to be determined between the parties:

  1. Whether or not the claimants are entitled to claim from the defendant, the sum of N38,854,051.95 together with a Brand new Mercedez Benz Caras part of the terminal benefits of late Olusegun Michael Adeyinka from the defendant.
  2. Whether or not the claimants are entitled to claim pre and post judgment interests on the monetary relief from the defendant.

Before going to the merit of this case, it is worthy of note that after entering appearance and filing its statement of defence, the defendant in this case only cross examined the CW1 and CW2 through its counsel Mr. T. Idenyi;thereafter, its counsel stopped coming to Court. In essence, the defendant did not open its defence by callingits witnesses as listed at page 280 of the recordto defend this case neither did it tender in evidence, the documents its listed to rely on at page 284 of the record; despite several adjournments granted the defendant by the Court for this purpose.

 

  1. The provision of Order 38 Rule 2 (2) of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017 is very instructive in situation like this and it provides that:

Where a cause is called for hearing and the claimant appears in Court but the defendant or respondent and/or counsel who has entered defence was not in Court and no good cause has been shown for the absence, the claimant may prove the claim in so far as the burden of proof lies upon the claimant.

 

As a matter of fact, counsel to the defendant was in Court when two out of the three witnesses of the claimant(s) gave evidence for the claimants in all the four consolidated cases (NICN/IB/40/2012 to NICN/IB/43/2012) in NICN/IB/40/2012 and he cross-examined the two witnesses. See the proceedings of the Court on July 8, 2015 at pages 51 to 58 in the case with Suit No:NICN/IB/40/2012. The 3rd witness of the claimant who testified on March 2, 2016 was not cross-examined by the defendant’s counsel because; by that day the defendant and its counsel had stopped coming to Court and without any explanation.

 

  1. Not minding the repetition but for emphasis; the claimant(s) pleaded facts to the effect thatthe deceased/claimant was employed in November 1982 by the defendant as a Sales Manager and that he rose through the ranks to become its Managing Director in December 2001until the time he left the Company in 2003. He went on that in December 2003, some senior members of the Board of Directors of the defendant persuaded him to resign because of the alleged dwindling fortunes of the defendant, which made it inevitable to invite investors who then insisted that they must have a controlling authority over the defendant. Hence, he resigned from his said appointment and in response; the defendant undertook to pay him his terminal benefits (including other entitlements) within thirty days from the day of his resignation but that the defendant failed to fulfill this promise. See the claimant’s pleadings in paragraphs 3 to 11 of the Statement of Facts; see also his letters of employment and the last promotion at pages 230 and 233 of the record respectively and the content of the ‘statement of final entitlement’ issued to him by the defendant at page 246 of the record.

 

  1. The case of the defendant as pleaded is that the claimant resigned from his appointment voluntarily in December 2003 and that the conditions of service he relied upon were made without the authority of the Board of Directors and the Shareholders of the defendant but were fabricated by the claimant in cohort with other Management staff to defraud the defendant. It avers further that the defendant did not make any promise to pay the claimant any entitlement neither did it receive any letter of demand from the claimant.

The testimonies of CW1 & CW2 under cross examination are not of any assistance to the defendant to prove that the claimant and some other Management staff of the defendant fabricated the conditions of service for the senior staff of the defendant without the authority/approval of the Board of Directors and those of the shareholders of the defendant. In essence, there is no evidence on the pleadings of the defendant before the Court. In West African Examination Counsel v. Oshionebo[2015] 55 NLLA (Pt. 187) 165 at 185 paragraphs A-D, it was held that if one party fails or refuses to submit issues raised in his pleadings for trial by giving or calling evidence in support, the trial Judge must, unless there are other legal reasons dictating to the contrary, resolve the case against the defaulting party. Indeed, refusal by a party to lead evidence in support of an averment in the pleadings or the entire pleadings translates into a voluntary abandonment of such averments or the entire pleadings as the case may be.Consequently, I find and hold that; because the defendant failed to lead evidence in support of its pleadings before the Court, the defendant has voluntarily abandoned the said pleadings in this case.

  1. It is trite that evidence not controverted, discredited or challenged ought to be accepted as proving an existing or alleged fact; see Okonkwo v. Onovo&Ors: [1999] LPELR-6630 (CA): [1999] 4 NWLR (Pt.597)110. Since there is no evidence from the defendant to contradict those of the claimant in this case, the claimant’s evidence is accordingly accepted as presented before the Court.

 

The question now is whether theunchallenged evidence of the claimants is credible, cogent and reliable enough to support the grant of hisreliefs. In other words; whether the claimant has proved his claims to the satisfaction of the Court by his uncontroverted evidence for him to be entitled to them, I will take the claims in sequence.

 

  1. Claimant’s Terminal Benefits

The claimant is claiming the sum N38,854,051.95 as his terminal benefits from the defendant.Parties are in agreement that the claimant left the company on December 31, 2003; see paragraph 13 of the amended statement of facts and paragraph 2 of the statement of defence.However, in order to establish this claim, the claimant referred the court to the conditions of service for Management staff of the defendant, dated July 23, 2002; see pages 239 to 245 of the record.By his pleading in paragraph 11 of his amended statement of facts, the claimant avers that the defendant waived the six months’ notice and promised to pay him his six months’ salary in lieu of notice but that the defendant never paid it. Furthermore, in the ‘Statement of Final Entitlement’ issued to the claimant by the defendant; the company spelt out the claimant’s total terminal benefits to include his gratuity of 166 weeks and his six months’ salary in lieu of notice and then puts the total entitlements at N34,808,671.95;see page 246 of the record.

 

The defendant’s counsel was in Court when the claimant tendered all these documents in evidence and they were admitted in evidence and he did not challenge them. CW2 who worked in the Account Department of the defendant at the material time gave detailed evidence of how the defendant calculated and prepared the claimant’s entitlements. He too was cross-examined by the defendant’s counsel but this evidence was not debunked neither was it discredited. Therefore, I am satisfied that the defendant owes the claimant the sum of N34,808,671.95 as stated in the ‘Statement of Final Entitlement’ letterissued to the claimant by the defendant and I so hold.

 

There is no evidence before the Court to support the claimant(s)’ claim for the sum of N4,045, 380.00 he allegedly expanded on behalf of the defendant. As a matter of fact, apart from the sum of N34,808,671.95 admitted in the defendant’s pleadings and as stated in the Document titled: ‘Statement of Final Entitlement’ Mr. O.M. Adeyinka; the claimant has not succeeded in proving to the satisfaction of the Court,any of his other monetary relief as endorsed, contrary to the total sum of N38,854,051.95 he is presently claiming against the defendant. In the circumstance, I find and hold that the claimant is only entitled to the sum of N34,808,671.95as his terminal benefits from the defendant as stated by the company in its letter/Document titled: ‘Statement of Final Entitlement’ Mr. O.M. Adeyinka; see page 246 of the record.

 

  1. Whether The Claimant Is Entitled to A Brand New Mercedez Benz Car

In paragraph 23(a) of the amended statement of fact, the claimant is seeking for a brand new Mercedez Benz Car as his parting gift/terminal entitlement because he resigned as the Managing Director of the defendant. See paragraphs 5 and 6 of the Amended Statement of Fact at pages to 322 to 326 of the file and the content of the letter dated November 26, 2001 titled:‘Appointment as the Managing Director’; stating that the late claimant was a Managing Director of the defendant.

However, in paragraph 4 of the Conditions of Service relied on by the claimant at page 240 of the record, the claimant is entitled to be “assigned two company cars with two drivers” while in the service of the defendant and on leaving the serviceas a Management Staff after fifteen completed years of service; “he shall retire with assigned car, refurbished by the Company as part of total emolument package.”

From the evidence before the Court, the claimant worked with the defendant for 21years before he retired as the Managing Director of the defendant from September 27, 1982 to December 31, 2003.There is no evidence before the Court showing that the claimant was assigned with an official vehicle while he was in the service of the defendant or after his resignation. Therefore, I find and hold that the late claimant was entitled to be assigneda refurbished car by the defendant as part of his total terminal emoluments in line with the terms and conditions of his employment. I further hold that the late claimant was not entitled to claim a brand new Mercedez Benz from the defendant as that claim is not supported by the terms and conditions of his employment.

  1. Was the late Claimant Entitled to Pre &Post Judgment Interests on His Terminal Benefits?

Part of the late claimant’s claim is 20% interest on his claimed sum from the time of his retirement on December 31, 2003 until judgment is delivered in this suit and then 10% interest on the said sum from the date of judgment until the finally liquidation of the judgment sum. There is no provision in the Rules of this Court that allows the late claimant to claim pre-judgment interest from the defendant. However, by the provision of Order 47 Rule 7 of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017 this Court is allowed to give direction as to the period within which certain payment (like judgment sum) is to be made and may thereafter, order interest at a rate not less than 10% per annum to be paid upon any judgment sum until its final liquidation and I so hold.

 

  1. On the whole, I hold and order as follows:
  2. I hold that the claimantsare entitled to only the sum of N34,808, 671.95 as the terminal benefits of late Olusegun Michael Adeyinka as admittedby the defendant.
  3. I hold that the claimantsare only entitled to claim post-judgment interest on the judgment sum at the direction of the Court.
  4. I hold that the claimantsare not entitled to claim from the defendant a brand new Mercedez Benz Car since there is no evidence that one was assigned to late Olusegun Michael Adeyinka in the first place as a Management Staff of the defendant who had served the Company for 21years.
  5. I further hold that the defendant are to give to the claimants a refurbished car on behalf of the late claimant as part of his total terminal emoluments in line with the terms and conditions of his employment.
  6. I hereby direct that the defendant shall pay the judgment sum of N34,808,671.95 only to the claimants on behalf of late Olusegun Michael Adeyinka within 30days from today; after which the judgment sum shall start to attract interest of 10% per annum until the judgment sum is finally liquidated.
  7. The defendant is to pay N100,000.00 cost to the claimants.

Judgment is entered accordingly.

 

Hon. Justice F. I. Kola-Olalere

 

Presiding Judge

admin

Website:

Related Story