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National Industrial Court

Mr. Sakote Victor -VS- G. Cappa Plc

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IN THE NATIONAL INDUSTRIAL COURT

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

 

BEFORE HER LORDSHIP HON. JUSTICE E. A. OJI, PhD

DATE:  THURSDAY 30TH JANUARY 2020          SUIT NO: NICN/LA/10/2018

BETWEEN

MR SAKOTE VICTOR                                                        CLAIMANT

AND

  1. CAPPA PLC                                DEFENDANT

 

Representation: 

Chukwuyem Atewe Esq. appears for Claimant

No representation for the Defendant

 

JUDGMENT

  1. Introduction:

 

By a general Form of Complaint dated the 11thday of January, 2018 the Claimant filed this suit claiming the following reliefs against the Defendant:

  1. AN ORDERthat the failure, refusal and neglect of the Defendant to pay the outstanding unpaid salary arrears of the Claimant totaling sum of N 2,132,000.00(Two million, One Hundred and Thirty Two Thousand Naira) which represents 41 months’ salary arrears of the Claimant who was in the employment of the Defendant is contrary to Section 15 of the Labour Act Cap 198 of LFN 2004 and is therefore illegal, unconstitutional, null and void and of no effect whatsoever.
  2. AN ORDERthat the failure of the Defendant to pay the Claimant his outstanding unpaid salary arrears totaling sum of N 2,132,000.00(Two million, One Hundred and Thirty Two Thousand Naira) which represents 41 months’ salary arrears of the Claimant who was in the employment of the Defendant is unfair labour best practices and contrary to Section 15 of the Labour Act Cap 198 of LFN 2004 and is therefore illegal, unconstitutional, null and void and of no effect whatsoever.
  3. AN ORDER directing the Defendant to pay to the Claimant outstanding unpaid salary arrears of the Claimant totaling sum of N2,132,000.00(Two million, One Hundred and Thirty-Two Thousand) which represents 41 months’ salary arrears of the Claimant and also compute all allowances and other emoluments due to the Claimant up to the date of judgment.
  4. INTEREST at the prevailing commercial banks’ rates on the sum arrived at in relief (c) above.

 

  1. An Order for the payment of the Claimant’s Long Service Awards as follows;

  1. 21”Inches Colour Television or the sum of (N48,000.00 being its equivalent current market price as of the date of filing this Complaint) plus One (1) Month basic Salary/Wage (N52,000.00 at the relevant time) for the (10th) Tenth Years’ Service Awards in the service of the Defendant.

  1.  26”Inches Colour Television or (N68, 000.00 being its equivalent current market price as of the date of filing this Complaint) plus One and half (1.1/2) Month basic Salary/Wage (N78, 000.00 at the relevant time) for the (15th) Fifteen Years’ Service Awards in the Service of the Defendant.

iii.               2 (Two) Door Refrigerator or the sum of (N272,000.00 being its equivalent current market price as of the date of filing this Complaint) plus 2 (two) Months basic Salary/Wage (totaling (N104, 000.00 at N52,000.00 each) for the (20th) Twentieth Years’ Service Awards in the service of the Defendant pursuant to Article 21 of the National Joint Industrial Council Agreement on Terms and Conditions of Service for Junior Employees in the Building and Civil Engineering Industry in Nigeria dated the 20th day of November, 2011 duly executed between the Employers and Employees Unions of the Parties.

  1.  An Order for the payment of 7.5% of the Claimant’s Monthly Wages based on total emolument comprising of basic Salary/wage, Rent Subsidy and Transport Allowance as replacement for the benefits hitherto applicable under Articles 20, 21, and 22 of the 2009 National Joint Industrial Council (NJIC) Agreement for years 2011, 2012 and 2013 cumulatively pursuant to Article 20 (iv) of the National Joint Industrial Council Agreement on Terms and Conditions of Service for Junior Employees in the Building and Civil Engineering Industry in Nigeria dated the 20th day of November, 2011 duly executed between the Employers and Employees Unions of the Parties.

  1. An Order for the payment of all accumulated entitlements due to the Claimant under Articles 20, 21 and 22 of the 2009 NJIC Agreement for the years 2011, 2012 and 2013 pursuant to Article 20 (i) and (ii) of the National Joint Industrial Council Agreement on Terms and Conditions of Service for Junior Employees in the Building and Civil Engineering Industry in Nigeria dated the 20th day of November, 2011 duly executed between the Employers and Employees Unions of the Parties.

  1. An Order for payment of a waiting fee of 3% (interest) per annum (pro rata) on reliefs (g) above for the year 2012 and 2013 respectively pursuant to Article 20 (i) and (ii) of the National Joint Industrial Council Agreement on Terms and Conditions of Service for Junior Employees in the Building and Civil Engineering Industry in Nigeria dated the 20th day of November, 2011 duly executed between the Employers and Employees Unions of the Parties.

  1. An Order for the payment of Allowance for Medical Treatment of the Claimant’s Family at the rate of the sum of N4, 300 (Four Thousand, Three Hundred) Naira per month for the 41 Months the Claimant is being owed salary arrears pursuant to Article 22 (iv)of the National Joint Industrial Council Agreement on Terms and Conditions of Service for Junior Employees in the Building and Civil Engineering Industry in Nigeria dated the 20th day of November, 2011 duly executed between the Employers and Employees Unions of the Parties.

  1. An Order for the payment of the sum of N20, 000,000.00 (Twenty Million) Naira only as compensation for loss of job, earnings due to disability arising from accident that occurred in the course of duty in the Defendant.

  1. An Order for the payment of the sum of N2, 000,000.00 (Two Million) Naira as cost of this action.

  1. All the processes filed in this suit were duly served on the Defendant; however, the Defendant failed and or neglected to enter appearance in defence of the Claimant’s Suit.  Trial commenced on the 17th day of July 2018.  The Claimant adopted his Witness Statement on Oath and tendered documents which were admitted and marked as exhibits C1 – C8.  The matter was then adjourned to the 25th day of October, 2018 for the Defendant to cross-examine the Claimant. Hearing notice was served on the Defendant.  On the said date the Defendant was not in Court, the Claimant moved the Court to foreclose the Defendant from cross-examination.  The matter was further adjourned to the 13th day of November, 2018.  On that date, Claimant’s witness testified in chief and the matter was adjourned to the 8th January 2019 for cross examination of CW2/Defence.  On the said date, the Defendant was again not in Court.  Since the Court cannot continue to wait for Defendant; the Defendant was foreclosed and the matter adjourned for adoption of final Addresses.  Claimant’s final written address was adopted on the 16th of December 2019.
  2. Facts of the Case:

The Claimant was an employee of the Defendant from 7th February 1992 as an electrician. His employment was confirmed in May 1994 by the Defendant. The Claimant was a member of the National Union of Civil Engineering Construction Furniture and Wood Workers (NUCECFWW) which has a Branch Office in the Defendant. The Claimant stated that on the 4th of April 2012 he was involved in an accident in Victoria Island in the course of performing his duties as assigned by the management of the Defendant.  He sustained serious injuries including first degree fractures which led to his admission in the hospital for 9 (Nine) Months and was subsequently discharged on the 12th of December 2012. The Claimant stated that he incurred the sum of N350, 000.00 for buying drugs and other medical bills as the Defendant made no positive effort to pay his bills despite the fact that he had meritoriously put in 20 years of active service for the growth of the Defendant. The Claimant was the Assistant General Secretary of the Union in its Branch Office in the Defendant when he had the accident.  It is the Claimant’s case that by his membership of the Union in the Defendant he is entitled to the full benefits of the Terms and Condition of Service of the Working Agreement between the Defendant and the Union. The Claimant stated that at the time his services was unjustly terminated in the Defendant his benefits under the Terms and Condition of Service of the Agreement between the Defendant and his Union were not paid to him by the Defendant. The Claimant stated that prior to the time he had the accident, the practice of the Defendant was to pay monthly salaries of employees in his department in cash. The Claimant stated that his monthly salary as paid by the Defendant is N52, 000.00(Fifty Two Thousand Naira) and that prior to the 4th of April 2012 he was not paid his monthly salary for 41 months by the Defendant totaling the sum of N 2,132,000.00(Two million, One Hundred and Thirty Two Thousand Naira) which is due to him as unpaid salary arrears. The Claimant stated that after he was discharged from the hospital in December 2012, he continued to go to work and was still carrying out his duties as assigned by the Defendant. The Claimant stated that in November 2013 the management of the Defendant decided to open salary accounts for employees in the Electrical Maintenance Department of the Defendant and he was surprised that his name was omitted from the accounts as no salary account was opened for him by the Defendant. He made several complaints and inquiries to the management of the Defendant on why the Defendant failed to open a salary account for him as opened for all other employees in his Department and was informed that the issue will be rectified. The Claimant stated that he was shocked when the Managing Director of the Defendant informed him that his services was no longer required and that the accounts department will get back to him and that he should stop coming to the office of the Defendant. He made several demands to the Defendant to pay him his outstanding salary arrears all to no avail.

  1. Argument of Counsel:

Submissions of Counsel:

The Defendant having failed to file any written address, after the time provided by the Rules, the Claimant proceeded to file his final written address. In it, Counsel, on behalf of the Claimant formulated two issues for determination, as follows:

  1. Having regard to the case of the Claimant, pleadings and evidence led in support thereof whether the Claimant has proved his case against the Defendant.

  1. Whether the failure of Defendant to attend Court proceedings affects the Case of the Claimant?

  1. In arguing issue A, Counsel on behalf of Claimant submits that he has been able to prove his case on the preponderance of facts, evidence and documents placed before the Court and that the evidence led by the Claimant were not disputed and or controverted by the Defendant. The Claimant argues that it is trite law that a worker is entitled to his wages at the end of each period for which the contract is expressed to subsist.  He referred to section 15 of the labour Act Laws of the Federation 2004 as authority for that position.  The Claimant also argued that pursuant to the National Joint Industrial Council Agreement on the terms and Conditions of Service for Junior Employees in the Building and Civil Engineering Industry in Nigeria, 2011, he was, by the act of his membership in the Union entitled to the benefits of the Terms and Conditions tied to services in the Defendant, and as prayed in relief E(i-iii), and F- I.  On this point, the Claimant referred to the case of Nigeria Employers’   Association of Banks Insurance and Allied Institutions v. National Union of banks, Insurance and Financial Institutions Employees (2006) 6 NLLR (Part 15) at page 301, where this Court held that collective agreement entered into by Management and Worker of a company is binding on the parties.

  1. The Claimant also stated that he paid medical bills out of his pocket and that the Defendant abandoned its medical responsibilities due to him on the working Agreement. He submits that it will be just and fair that he be compensated for loss of job, earnings and inability to secure another job for life due to the fracture suffered.  He further submits that in personal injury cases, which involves pain and suffering, and loss or diminution of the enjoyment of life, the term personal loss includes every kind of harm and disadvantages flowing from the physical injury other than the loss of money or property, it also include loss or impairment of the integrity of the body, pain and suffering both physical and mental loss of the pleasures of life, actual shortening of life, and mere discomfort or inconvenience. He referred to the case of Samson Ediagbonya v. Dumenz (NIG) Ltd & Anor (1986) 3 NWLR (Part 31) at 753.

  1. The claimant further submits that having engaged Solicitors and incurred liabilities in pursuant of his entitlement in the Defendant; he is entitled to the sum of N2, 000,000.00 as cost of this action.

  1. On issue two, which is whether the failure of the Defendant to attend Court proceedings affects the case of the Claimant, the Claimant submits that the Defendant having been served with Claimant’s originating processes and failed to defend the same is a clear admission that the Defendant has no defence to the case of the Claimant.

 

 

DECISION:

The Defendant was afforded all opportunities to defend this case.  Despite service of the processes and hearing notices and evidence attesting to the same, the Defendant did not file any process nor was it represented at the trial by a Counsel.

I read carefully and considered the processes filed, the evidence led, the written submissions and authorities cited in the final address.  I also heard the evidence of the two witnesses called at the trial.  In addition, I evaluated all the exhibits tendered and admitted.  Having done all this, I set a lone issue down for determination:

  • Whether the Claimant is entitled to his claim.

This lone issue is appropriate as it is trite that he who approaches the Court has the burden of proving the entitlement to the reliefs sought. Both case law and statute support this proposition. See Chairman, EFCC & Anor. v. Littlechild & Anor (2015) LPELR-25199 (CA) & Section 131(1) & (2), Evidence Act, 2011. Except in relation to express and unambiguous admission, the burden of proof remains on he who asserts.  Also, by the principles in Oloruntoba-Oju v. Lawal (2001) FWLR(Pt. 72) 2029 at 2033 and Okomu Oil Palm vs. Iserhienrhien (2001) 5 NSCQR 802, where an employee complains that his employment has been wrongfully terminated, he has the onus to place before the court the terms of the employment and to prove in what manner the said terms were breached by the employer.

The Claimant by evidence which was not controverted proved that he was employed by the Defendant.  This was done via exhibits C1 – letter dated 1st May 1994 converting his employment to a monthly rated employee of the Defendant and Exhibit C5 – his membership identity card to the National Union of Civil Engineering Construction, Furniture & Wood Workers (NUCECFWW) G. Cappa Plc Branch. Exhibit C1 is a copy as the Claimant stated that he had lost the original. It shows that the Claimant was engaged on 7th February 1992 and converted to a monthly rated employee from 1st June 1995.  The Claimant also presented the terms of his employment with the Defendant contained in exhibit C4 – the National Joint Industrial Council (NJIC) Agreement on Terms and Conditions of Service for Junior Employees in the Building and Civil Engineering Industry in Nigeria.  This document, though being a collective agreement, I find to have been expressly made part of the terms and conditions of Claimant’s employment vide exhibit C1 which clearly provides as follows:

Your rights and obligations are as defined in the relevant Agreement on Terms and Conditions of Service issued by the National Joint Industrial Council including any agreed official amendments or alterations thereto.

Exhibits C6 – C7 sought to establish the Claimant’s participation in the Union.  I however discountenance and expunge these three documents as they are not signed. By my finding that exhibit C1 expressly incorporates exhibit C4, the Claimant is therefore entitled to the full benefits of the Terms and Conditions emanating from the working Agreement with the Defendant. The said exhibit C4 in article 3(B) also state that the “the terms of this Agreement form part of the individual employee’s contract of employment and shall together accordingly”.

The Claimant in his evidence stated that the Defendant paid his salary in cash.  This I find to be consonant with Article 33 of exhibit C4.  It provides:

ARTICLE 33: METHOD OF PAYMENT OF SALARIES/WAGES STRUCTURE

  1.  Salaries/wages are to be paid to employees in cash.  It must be given in a packet with the name of the employees written on the packet and, a note of how the salaries/wages is made up and all deductions made salary slip inserted within or accompanying the packet.

With this provision of the Agreement, and the Claimant’s evidence that he was paid in cash, I accept the Claimant’s testimony that he was paid the sum of N52, 000 monthly.  This fact is also contained in exhibit C3 – Demand letter written to the Defendant by Claimant’s Counsel.   There, the Claimant, via his Counsel stated at page 2 paragraph 4 that:

Furthermore, our client has intimated us on the fact that his monthly salary is N52,000.00(Fifty Two Thousand Naira) and he has not been paid for about 41 months by your management.

Exhibit C3 on its face, shows that it was received by the Defendant.  There is no evidence showing that this figure was challenged in any way.  Being unchallenged and uncontroverted, I accept it as proof that the Claimant was indeed paid N52,000.00 and that he has not been paid for 41 months.  Exhibit C3 went on to demand for the payment of the sum of N2, 132,000.00(Two Million One Hundred and Thirty Two Thousand) Naira being the total sum of the outstanding unpaid salary arrears owed to him.  Ordinarily, this Court would have required the production of payslips, but then, the terms and conditions of service stated clearly that the Claimant was to be paid by cash.  This piece of evidence was not disputed and or controverted by the Defendant.  Even where it was expressly stated in the letter of demand, there is no evidence of denial or of action refuting the assertion.  I find that that act of non-denial is suggestive of admission.  Section 20 of the Evidence Act, 2011 provides that “an admission is a statement, oral or documentary, or CONDUCT which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons, and in the circumstances, mentioned in this Act.”  See Onoba v. Abuja Building Products Ltd & Ors (2014) LPELR-22704(CA).  In the case of Registered Trustees Anacowa Motorcycle Owners & Riders Association & Ors v. NUT Endwell Micro Finance Bank Ltd (2018) LPELR-46749(CA), the Court of Appeal stated on admissions by conduct that:

Exhibit B shows the breakdown of the loan and how the figure of N16,044,052.06 demanded as the outstanding balance as at 22/10/2015, was arrived at. This figure was not challenged by the Appellants. The law is settled and clear that where a Bank makes demands for settlement of debt by letters and the amount of debt is contained in the letter and the debtor does not query the figure written in the letter as the overall debt due but rather writes letters in response explaining the reasons for non-payment of the debt, or refuses to respond at all, the debtor will be deemed to have impliedly admitted the quoted figure as the amount of debt due. See the decision of this Court in Nagebu Company (Nig) Ltd vs Unity Bank Plc (2014) 7 NWLR (PT. 1405) 42, 81 and Karimat Global Trade Links Ltd & Anor vs Unity Bank Plc (2014) LPELR – 23986 (CA) and Intime Connection Ltd vs Ichie (2008) LPELR – 8772 AT PAGE 20 PARA D – G. Failure to react to the figure quoted in the demand letter leads to a presumption of admission by conduct. The Appellants must thus be deemed to have admitted their indebtedness to the Respondent as at 22/10/2015 to be N16,044,052.06 quoted in Exhibits B and F in consonance with paragraph 29 of the statement of claim.” Per WAMBAI, J.C.A. (Pp. 22-23, Paras. E-E)

The Claimant also stated that on the 4th day of April, 2012 he had a Motor accident in the course of duty in the Defendant which cost him a first degree fracture and was admitted in the hospital for nine months. The Claimants stated he spent N350, 000.00 on drugs and bills while in the hospital and same was paid by him.  In proof, the Claimant tendered copies of receipts relating to drugs purchased by him.  These are collectively marked exhibit C2.  The Claimant stated that the originals were lost when he was ejected from his house.  I have considered the receipts to determine their proof of the alleged bills.  There are 10 receipts in all.  Two are issued by Pharma Aid Ltd (Pharmacy and Stores).  They contain bills for 12,600 and N15, 500.  The dates on them are not decipherable as figures were written over some other figures.  The effect is that what is shown now appears as 15/5/1/2012 with the figures clearly showing to have been over written on an existing date. The same goes for the second receipt with the date showing as 11/01/71/2012 with clear and obvious mutilations.  I cannot rely on this document to determine the bill it contains.  I therefore discountenance these two receipts as unreliable.  Four of the remaining eight receipts are issued by Optimades Pharmacy and Stores.  The dates again are not clear neither are the other items written there.  I find them unusable for the purpose of determining the bills they contain.  The last four receipts were issued by Optimades Pharmacy and Stores for N3900, N6900, N6800 and N6880.  They were issued on 4/07/13, 4/3/14, 2/6/14 and 8/12/13.  However, the Claimant in his evidence stated that he was discharged from the hospital on the 12th of December 2012. The Claimant further stated that the medical bills receipts were paid by him in furtherance of his treatment during his hospitalization.  If that is the case, then the dates on the receipts do not correspond with the time of Claimant’s hospitalization; and there is no explanation for the discrepancy in date.  In addition, the total of the entire receipts is N24,480 which does not prove the N350,000.00 claimed by the Claimant.  In all, I find that the receipts admitted as exhibit C3 do not establish Claimant’s alleged medical expenditure.

The Claimant also stated that since his employment was terminated in the Defendant and on account of his permanent disability he has not been able to secure another job. On the strength of this permanent disability the Claimant seeks an Order for N20,000,000.00 (Twenty Million) Naira as compensation for loss of job, earnings due to disability arising from the accident in the course of work in the Defendant.  I have considered this claim but do not find any proof of the alleged disability beyond his mere ipse dixit as contained in his testimony.

Again, the Claimant further stated that he incurred liabilities in engaging the services of his Solicitors in the pursuit of his entitlement from the Defendant and thus seeks the sum of N2,000,000.00 (Two Million) Naira as cost of litigating this action.  As held in Emperion West Africa Ltd v. AFLON Ltd & Anor (2014) LPELR-22975(CA) in order to strictly indemnify the Claimant, Claimant needs to establish that she incurred such cost, to the Court.  In Intels Nigeria Ltd. & Ors. v. Bassey (2011) LPELR-4326(CA), the Court held that:

Indeed, a special damage under our law is incapable of being subjected to conjecture or speculation or any element of uncertainty. Proof in relation thereto must be adequate and sufficient in order to warrant its entitlement and if it is inadequate to engender its disentitlement. I am thus in tandem and at par with the dictum in F. B. N. Ltd. v. Owie (1997) 7 NWLR (Pt. 484) 744/756 where Akpabio, JCA stated thus:

A lawyer’s professional fee is not something to be proved by mere ipse dixit.

Everybody knows that lawyers issue receipts for any money paid to them.”

I do not find any evidence of agreement or payment of the claimed N2,000,000.00 for cost of this action.

I agree with the Claimant that a Party in a suit succeeds on the strength of his case and not the weakness of the other. I need to note however that predominantly, the assertions made in this action by the Claimant were in the negative form; non-payment of salary, non-payment of allowances and other entitlements which the Courts have held cannot be proved, in most cases.  In the case of Intercontinental Bank Plc. v. Hilman & Bros Water Engineering Services Nigeria Limited (2013) LPELR-0670(CA), the Court of Appeal, per Per TSAMMANI, J.C.A noted that the burden of adducing evidence is on the person who would fail if no further evidence is adduced on the issue; the onus of proof of the issues does not remain static but may shift from the Plaintiff to the defendant, and vice-versa, depending on the state of the issues raised in the pleadings.  His Lordship noted that:

Perhaps it is necessary for me to point out that, the onus is on a party to proof a positive assertion and not a negative assertion. It therefore means that, the burden of proof lies upon him who asserts the affirmative of an issue, and not upon him who denies, since from the nature of things he who denies a fact can hardly produce any proof. See UNION BANK (NIG) LTD. v. AJAGUN (1990) 1 NWLR (Pt. 126) p.328 at 342; ADEGOKE v. ADIBI (1992) 5 NWLR (Pt. 242) p.410; KOKORO-OWO v. OGUNBAMBI (1993) 8 NWLR (Pt.313) p. 627; IKE v. UGBOAJA (1993) 6 NWLR (Pt.301) p. 539; INSURANCE BROKERS OF NIG. V. A.T.M. CO. LTD (1996) 8 NWLR (Pt.466) p.316 and OGBUANYINYA v. OKUDO (NO. 2) (1990) 4 NWLR (pt. 146) P.551.” Per TSAMMANI, J.C.A. (Pp. 31-32, Paras. B-B

Further on this issue, the Court of Appeal in HULUWA & ANOR V. AYE & ORS (2015) LPELR-40476(CA) held that “. It is settled that a party who makes a positive/affirmative assertion is laden with the arduous burden of proving them. Contrariwise, a party that makes a negative assertion carries no burden of proof “.  See Harding & Anor v. AG & PT Lagos State & Anor (2016) LPELR-40990(CA).  According to the Court of Appeal in Osokoya v. Onigemo (2017) LPELR-42730(CA):

In law, it is he who alleges the positive that carries the burden of proof of what he has positively alleged. There is really no initial burden on he who alleges the negative since the negative is ordinarily incapable of proof. See Elemo v. Omolade & Ors. (1968) NMLR 359; Atane v. Amu (1974) 10 SC 237; Fashanu v. Adekoya (1974) 6 SC 83; Kate Enterprises Ltd. v. Daewoo Nig Ltd. (1085) 2 NWLR (Pt.116); Onyenge v. Ebere (2004) 18 NSCQR (Pt. 789).” Per GEORGEWILL, J.C.A. (P. 16, Paras. B-D

In this case, the Claimant’s claim is founded on non-performance of contractual terms.  In my view, he cannot prove these non-performances.  It was for the Defendant to show one way or the other, the performance of those contractual terms, which in this case, they chose not to prove.  The case of Sdiq & Ors v. Fasheun & Anor (2016) LPELR-41473(CA) held in a case which I consider related by nature as follows:

The law is that it is he who alleges the positive or affirmative that proves and not he who alleges the negative. It is the Respondents who alleged that the reserved rents have been paid by their predecessor in title. The Appellants merely alleged in the negative that the Rents reserved in the lease have not been paid. The onus was therefore as rightly held by the Court below on the Respondents to prove by cogent credible evidence the fact of payment of the reserved rents on the lease by their predecessor in title. It is only when the Respondents have introduced at least prima facie evidence of payment of the reserved rents by the Predecessor that the burden of leading rebuttal evidence would shift unto the Appellants. The above principle of the law is encapsulated in the Latin Maxim; “en incumbit probation, qui dicit non qui negat; cum per natruram factum negates probitio nulla sit” meaning the proof lies upon him who affirms, not upon him who denies, since by the very nature of things he who denies the existence of a fact cannot produce any proof. In other words, a negative assertion is incapable of proof.

In Senator Iyiola Omisore & Anor v. Ogbeni Rauf Adesoji Aregbesola & Or (2015) LPELR-SC.204/2015, the Supreme Court per NWEZE JSC had reiterated this principle of law inter alia thus:

“Now, there was an old maxim which was very popular in the Latin days of the Law. This maxim, which developed from the old Roman jurisprudence, was expressed thus: incumbit probatio qui dicit, non qui negat. It comes to this – the burden of proving a fact rests on the party who asserts the affirmative of the issue and not upon the party who denies it – for a negative is usually incapable of proof. Instructively, this maxim has matured into an evidential rule in many jurisdiction… This has been the consistent posture of this Court on this question.” See also Elemo v. Omolade & Ors. (1968) NMLR 359; Atane v. Amu (1974) 10 SC 237; Fashanu v. Adekoya (1974) 6 SC 83; Kte Enterprises Ltd. v. Daewoo Nig Ltd. (1085) 2 NWLR (Pt. 116) Onyenge v. Ebere 18 NSCQR (Pt. 11) 789; Vulcan Gases Ltd. v. Gesellschaft, Fur Ltd. (2007) 9 NWLR (PL 719) 610.” Per NDUKWE-ANYANWU, J.C.A. (Pp. 17-19, Paras. C

I now proceed to consider the reliefs sought by the Claimant seriatim.

Relief A:

Though the Claimant wrote to the Defendant demanding for his arrears of salary as per his claim, the Defendant made no response.  This we have found to be an admission of what is contained in the letter.  Apart from the express provision in the contract of employment for the payment of salary(exhibit C4, paragraph 33); it is an implied term into every contract of employment that the employee is entitled to his salary after he has performed his duties.  By the provisions of section 15 of the Labour Act,

Wages shall become due and payable at the end of each period for which the contract is expressed to subsist, that is to say, daily, weekly or at such other period as may be agreed upon: Provided that, where the period is more than one month, the wages shall become due and payable at intervals not exceeding one month.

The Claimant having led evidence to show that he was paid by cash and having made a demand of his salaries of the Defendant, it was for the Defendant to lead evidence to show that it had indeed paid the salary, by any means whatsoever.  This, the Defendant has failed to do, thus leaving Claimant’s evidence uncontroverted.  I therefore order as prayed under relief A that the failure, refusal and neglect of the Defendant to pay the outstanding unpaid salary arrears of the Claimant totaling sum of N 2,132,000.00(Two million, One Hundred and Thirty Two Thousand Naira) which represents 41 months’ salary arrears of the Claimant who was in the employment of the Defendant is contrary to Section 15 of the Labour Act Cap 198 of LFN 2004 and is therefore illegal.

I also order as prayed in relief B that the failure of the Defendant to pay the Claimant his outstanding unpaid salary arrears totaling sum of N 2,132,000.00(Two million, One Hundred and Thirty Two Thousand Naira) which represents 41 months’ salary arrears of the Claimant who was in the employment of the Defendant is unfair labour best practices and is therefore illegal, null and void and of no effect whatsoever.

Consequently, I order, as prayed in relief C and direct the Defendant to pay to the Claimant outstanding unpaid salary arrears totaling N2,132,000.00(Two million, One Hundred and Thirty Two Thousand) which represents 41 months’ salary arrears of the Claimant.  I decline the prayer for the computation of all allowances and other emoluments due to the Claimant up to the date of judgment as none was pleaded.

Relief D is for pre-judgment interest.  The law is trite that before a party can claim pre-judgment interest, he has to plead not only his entitlement to the interest, but the basis of the entitlement either by statute or contract/agreement between the parties, or under mercantile custom or under principle of the equity. See Dantama v. Unity Bank Plc (2015) LPELR-24448(CA). It is for the Claimant to prove his entitlement to the stated pre judgment interest. This accords with the age old principle that he who asserts must prove same. The Claimant has not proved how he became entitled to the interest claimed. Not having proved same this head of relief is refused.  See also Mr. Kurt Severinsen v. Emerging Markets Telecommunication Services Limited [2012] 27 NLLR (Pt. 78) 374 NIC; Mr. Valentine Ikechukwu Chiazor v. Union Bank of Nigeria Plc Suit No. NICN/LA/122/2014 judgment delivered on 12th July 2016.

Under relief E, the Claimant sought for the payment of the Long Service Awards.  He relied on Article 21 of Exhibit C4.  Article 21 provides as follows:

ARTICLE 21:  LONG SERVICE AWARD

Upon completion of 10 years meritorious service, a Long Service award will be made on the following graduations.

  1.  10 years – 21” colour TV plus 1 month basic salary/wage.
  2.   15 years – 26” colour TV plus 1.1/2 months basic salary/wage
  3.   20 years – 2 Door Refrigerator plus 2 months basic salary/wage.
  4. 25 years – N00,000 cash payment in lump sum
  5. 30 years – N150,000.00 cash payment in lump sum.

I have already found that exhibit C4 forms part of the terms of employment between the Claimant and the Defendant.  The provision of Article 21 stated above is clear and unambiguous.  The Claimant in his evidence proved that he was employed on the 7th of February 1992 and confirmed in May 1994.  He stated that he was relieved of his employment after the salary of July and August 2013 was not paid.  This brings the Claimant’s employment to a period of 21 years.  That being the uncontroverted evidence, I find that the Claimant is entitled to the Long service awards provided in Article 33 of his contract of employment.  I therefore order the Defendant to give and to pay to the Claimant the following:

 

  1. 21”Inches Colour Television or the sum of (N48,000.00 being its equivalent current market price as of the date of filing this Complaint) plus One (1) Month basic Salary/Wage (N52,000.00 at the relevant time) for the (10th) Tenth Years’ Service Awards in the service of the Defendant.

  1.  26”Inches Colour Television or (N68, 000.00 being its equivalent current market price as of the date of filing this Complaint) plus One and half (1.1/2) Month basic Salary/Wage (N78, 000.00 at the relevant time) for the (15th) Fifteen Years’ Service Awards in the Service of the Defendant.

III. 2 (Two) Door Refrigerator or the sum of (N272,000.00 being its equivalent current market price as of the date of filing this Complaint) plus 2 (two) Months basic Salary/Wage (totaling (N104, 000.00 at N52,000.00 each) for the (20th) Twentieth Years’ Service Awards in the service of the Defendant pursuant to Article 21 of the National Joint Industrial Council Agreement on Terms and Conditions of Service for Junior Employees in the Building and Civil Engineering Industry in Nigeria dated the 20th day of November, 2011 duly executed between the Employers and Employees Unions of the Parties.

Article 20 of exhibit C4 provides for severance benefits.  The Claimant in his relief F asked for an Order for the payment of 7.5% of the Claimant’s Monthly Wages based on total emolument comprising of basic Salary/wage, Rent Subsidy and Transport Allowance as replacement for the benefits hitherto applicable under Articles 20, 21, and 22 of the 2009 National Joint Industrial Council (NJIC) Agreement for years 2011, 2012 and 2013 cumulatively pursuant to Article 20 (iv) of the National Joint Industrial Council Agreement on Terms and Conditions of Service for Junior Employees in the Building and Civil Engineering Industry in Nigeria dated the 20th day of November, 2011 duly executed between the Employers and Employees Unions of the Parties.

I have considered this relief via-a-vis article 20(iv) of exhibit C4 referred to in the relief.  I find that by paragraph (iv), entitlement to the relief sought is made effective from January 2012.  I therefore Order for the payment of 7.5% of the Claimant’s Monthly Wages based on total emolument comprising of basic Salary/wage, Rent Subsidy and Transport Allowance as replacement for the benefits hitherto applicable under Articles 20, 21, and 22 of the 2009 National Joint Industrial Council (NJIC) Agreement for years 2012 and 2013 only, cumulatively pursuant to Article 20 (iv) of the National Joint Industrial Council Agreement on Terms and Conditions of Service for Junior Employees in the Building and Civil Engineering Industry in Nigeria dated the 20th day of November, 2011.

Relief G is granted with respect to 2011 ONLY.  The Claimant sought for an order for the payment of all accumulated entitlements due to him under Articles 20, 21 and 22 of the 2009 NJIC Agreement for the years 2011, 2012 and 2013 pursuant to Article 20 (i) and (ii) of the National Joint Industrial Council Agreement on Terms and Conditions of Service for Junior Employees in the Building and Civil Engineering Industry in Nigeria dated the 20th day of November, 2011.  I find that Article 20 (i) envisages payment for 2011 only. Article 20(i) saved rights that would have accrued to the employees under the 2009 agreement and would not continue thereafter, as the new Agreement would become the applicable extant Agreement.  To hold otherwise would be tantamount to double benefits for 2012 and 2013 which has already been captured by the grant of the relief F.

Relief H is for an order for payment of a waiting fee of 3% (interest) per annum (pro rata) on reliefs (g) above for the year 2012 and 2013 respectively pursuant to Article 20 (i) and (ii) of the National Joint Industrial Council Agreement on Terms and Conditions of Service for Junior Employees in the Building and Civil Engineering Industry in Nigeria dated the 20th day of November, 2011 duly executed between the Employers and Employees Unions of the Parties.  I have already found that the entitlements provided under Article 20 (i) and (ii) can only be with respect to 2011.  Therefore, this relief cannot be granted as it seeks for payment of a waiting fee of 3% for the years 2012 and 2013.  Paragraph (iii) of Article 20 supports this position.  It provides that; “a waiting fee of 3% per annum (pro-rated) shall be added to the employee’s calculated sum where the employee is paid after 31st of December 2011.  Thus, being rights accruing under the old Agreement of 2009, there can be no waiting fee for 2012 and 2013 since the 2009 Agreement is not applicable to those years.  Even by paragraph (i) of Article 20 it is clear that “all accumulated entitlements due to the worker under Articles 20, 21 and 22 of the 2009 NJIC Agreement”, are saved; the said articles having been expunged and replaced. This relief is therefore declined.

Relief I is for an order for the payment of Allowance for Medical Treatment of the Claimant’s Family at the rate of the sum of N4, 300 (Four Thousand, Three Hundred) Naira per a Month for the 41 Months the Claimant is being owed salary arrears pursuant to Article 22 (iv)of the National Joint Industrial Council Agreement on Terms and Conditions of Service for Junior Employees in the Building and Civil Engineering Industry in Nigeria dated the 20th day of November, 2011 duly executed between the Employers and Employees Unions of the Parties.  I find proof of the entitlement to this relief in Article 22 (iv) of exhibit C4.  I therefore order as prayed in this relief.

Relief J is for an order for the payment of the sum of N20, 000,000.00 (Twenty Million) Naira only as compensation for loss of job earnings due to disability arising from accident that occurred in the course of duty in the Defendant.  I have considered this relief and the evidence led in this case, and do not find any term in Claimant’s terms of employment justifying compensation for loss of job.  Claimant did not make a case for unlawful or wrongful termination. Reliefs having been ordered for unpaid salaries and other entitlements, granting this relief will not only amount to double compensation but it is also not supported by the pleadings.  With respect to loss of earnings due to disability arising from accident, I have considered the evidence of both the Claimant and CW2 and do not find proof of any form of disability.  I cannot therefore determine the extent to which it led to loss of earnings or otherwise.

I have earlier in this judgment stated that I do not find evidence of the cost of this action.  I therefore decline relief K sought in this action for N2,000,000.00 as cost of this action.

Judgment is entered accordingly.

                                              …………………………………….

Hon. Justice Elizabeth A. Oji PhD

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