MRS. LILIAN CHINYERE OFORDU -VS- IKE UJAH

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ENUGU JUDICIAL DIVISION

HOLDEN AT ENUGU

BEFORE HIS LORDSHIP, HON. JUSTICE IKECHI GERALD NWENEKA

DATE: 16th February 2018 SUIT NO. NICN/EN/99/2015

BETWEEN

MRS. LILIAN CHINYERE OFORDU … CLAIMANT

AND

IKE UJAH … DEFENDANT

[Trading under the name and style

of Ike Ujah & Co.]

REPRESENTATION:

Christopher Ezeoka Esq. for the Claimant

No legal representation for the Defendant.

JUDGMENT

The Claimant by a Complaint filed on 28th October 2015 claimed against the Defendant as follows:

An order directing the Defendant to forthwith pay to the Claimant the sum of N560, 000.00 [five hundred and sixty thousand naira] being arrears of salary owed to her by the Defendant for the months of October 2012 to November 2013 at the rate of N40, 000.00 per month.

Interest in respect of the above sums of money at the rate of 21% per month at the prevailing money market rate from October 2012 to November 2013, until the matter is determined and the Defendant pays up the entire sums owed to the Claimant.

General damages of N5, 000,000.00 [five million naira].

The Claimant filed alongside the Complaint a Statement of Facts, list of witness and witness’ deposition, list of documents and copies of the documents. The processes were served on the Defendant on 30th October 2015. The Defendant initially represented himself even though informed of his right to a Counsel of his choice. He was subsequently represented by Counsel on 15th November 2017 and 12th December 2017 but did not file memorandum of appearance or any defence process. Trial commenced on 15th November 2017. The Claimant adopted her statement on oath dated 28th October 2015 as her evidence in proof of her claim. She tendered 7 exhibits, exhibits A to G. Exhibit A is the Claimant’s letter to the Defendant dated 1/7/2013 requesting for payment of her arrears of salary. Exhibit B is her second reminder dated 26/8/2013. Exhibit C is the Claimant’s resignation letter dated 13/1/2014. Exhibit D is the Claimant’s third reminder dated 11/3/2014. Exhibit E is Claimant’s Solicitors’ letter to the Defendant dated 8/5/2014. Exhibit F and F1 is the Defendant’s response to the Claimant’s Solicitors’ letter dated 30/5/2014 and exhibit G is the Claimant’s Solicitors’ reply to the Defendant’s letter. The case was thereafter adjourned to 12th December 2017 at the instance of the Defendant’s Counsel for continuation of trial or report of settlement. The matter came up on 12th December 2017. The Claimant entered the witness box for cross examination but the Defendant’s Counsel did not have any questions for her. The Claimant was consequently discharged and since the Defendant did not file any defence processes and did not have any application for enlargement of time to file the processes, the Defendant was foreclosed and the case was adjourned for adoption of final written addresses. On 17th January 2018, learned Counsel for the Claimant, Mr. Ezeoka, adopted the Claimant’s final written address dated 20th December 2017 and filed on 21st December 2017. The Defendant was absent and unrepresented by Counsel. The matter was consequently set down for judgment.

CLAIMANT’S CASE

The Claimant’s case is that she was an employee of the Defendant at Ike Ujah & Co as an Audit staff on a monthly salary of N40, 000 from 22nd May 1995 to 13th January 2014 when she resigned her appointment. The Claimant resigned due to non-payment of her salaries. At resignation, she surrendered her one month’s unpaid salary to the Defendant leaving 14 months unpaid salary in the sum of N560, 000.00. The Claimant tendered the various letters of demand and the Defendant’s response, exhibits A to G. During the pendency of this suit, the Defendant made part payment of the outstanding salaries in the sum of N301, 000 paid in three instalments of N126, 000 in February 2016, N75, 000 in October 2016 and N100, 000 in April 2017 leaving a balance of N259, 000.

DEFENDANT’S CASE

The Defendant did not file defence processes and did not testify in his defence. The case is therefore undefended.

SUBMISSION ON BEHALF OF THE CLAIMANT

The Claimant’s final written address is dated 20th December 2017 and filed on 21st December 2017. The Claimant raised two issues for determination namely:

Whether from the facts pleaded and evidence adduced, the Claimant made out a case entitling her to be awarded the reliefs sought against the Defendant?
Whether the Court is to act on unchallenged and uncontroverted credible evidence of a witness?

Learned Counsel to the Claimant argued the two issues together. He submitted that all civil suits are decided on the balance of probabilities and referred to the case of Uwah v. Akpabio [2014] AFWLR [pt.738] 898. Learned Counsel submitted further that in the instant case, it was only the Claimant that gave evidence to prove her case; and that the Claimant’s evidence is unchallenged, credible and unequivocal and urged the Court to rely on it and grant the reliefs sought. He referred the Court to the case of N.A.O.C Ltd v. Janyim Nig. Ltd [2015] AFWLR [pt.785] 396. Continuing, learned Counsel submitted that despite being served with the processes, the Defendant appeared in person and elected not to file any statement of defence. He referred to the case of CBN v. OKOJIE [2015] AFWLR [pt.807] 501 and submitted that a litigant who fails to file a statement of defence and further fails to cross-examine the adverse party has by his own hands shut himself out from the proceedings in which the plaintiff makes serious allegations, claims against him. He urged the Court to grant the claims of the Claimant.

SUBMISSION ON BEHALF OF THE DEFENDANT

Learned Counsel to the Defendant did not file any written address and did not urge anything on the Court.

COURT’S DECISION

I have read and understood the statement of facts and witness deposition filed by the Claimant and listened to her oral testimonies and watched her demeanour. I have also read and carefully evaluated the 7 exhibits tendered and admitted in this case and the written address filed by learned Counsel to the Claimant. Having done this, it is my considered opinion that the issue for determination in this case is whether the Claimant has proved her case on a balance of probability to entitle her to judgment? It is settled law that in civil cases, the burden of proof is on he who asserts same. See sections 131[1] and 132 of the Evidence Act 2011 and the cases of Ebute John Onogwu & 4Ors. v. Benue State Civil Service Commission & 3Ors. [2012] LPELR-8604 [CA] 1 at 26, Senator Chris Adighije v. Hon. Nkechi J. Nwaogu & Ors. [2010] LPELR-4941 [CA] 79-80 and Federal Mortgage Finance Ltd. v. Hope Offiong Ekpo [2003] LPELR-5627 [CA] 1 at 23-24, [2004] 2 NWLR [pt.856] 100. Thus, to succeed the Claimant must put forward cogent and credible evidence in support of the reliefs sought.

The Claimant’s first relief is for an order directing the Defendant to forthwith pay to the Claimant the sum of N560, 000.00 [five hundred and sixty thousand naira] being arrears of salary owed to her by the Defendant for the months of October 2012 to November 2013 at the rate of N40, 000.00 per month. The Claimant testified that she was an employee of the Defendant at Ike Ujah & Co. as an Audit staff on a monthly salary of N40, 000 from 22nd May 1995 to 13th January 2014 when she resigned her appointment. She stated that at resignation she surrendered her one month’s unpaid salary to the Defendant leaving 14 months unpaid salary in the sum of N560, 000.00. The Claimant tendered the various letters of demand particularly exhibits D, E and G. The Defendant received exhibits D, E and G and his reply, exhibit F and F1 did not deny liability for the sum of N560, 000 claimed by the Claimant. The Defendant, though served with the originating processes, did not file a statement of defence and did not cross-examine the Claimant. In Central Bank of Nigeria & 6 Ors. v. Aite Okojie [2015] LPELR-24740 [SC] at page 34, the Supreme Court, per Rhodes-Vivour, JSC, held:

“Evidence that is not challenged or discredited should be accepted and relied on if such evidence is adduced to establish a relevant fact….My lords, a litigant who fails to file a statement of defence and further fails to cross-examine the adverse party, in this case the Respondent, has by his own hands shut himself out from the proceedings in which the Plaintiff/Respondent makes serious allegations, claims against him. The Defendant has abandoned any defence he might have, and the court is expected to accept the Plaintiffs unchallenged evidence to establish the facts the Plaintiff seeks to establish.”

Also, in the case of Engr. Femi Sonuga & Another v. The Minister, Federal Capital Territory, Abuja & Another [2010] LPELR-19789 [CA] at page 21, Bada, JCA, held: “Where a Defendant fails to file a defence or when the statement of defence has been struck out as in this case, the Defendant will be deemed to have admitted the claim or relief in the statement of claim. And under that situation, the Plaintiff/Appellant’s claim would become an undefended claim.” In Sunday Ololo v. Oliver Nwoko [2013] LPELR-22509[CA] at page 24, per Aji, JCA, held “It is settled law that where a Defendant fails to specifically deny the averment in a statement of claim, that fact should be deemed to have been established without the need to call evidence in proof of same.” In In-Time Connection Limited v. Mrs. Janet Ichie [2009] LPELR-8772[CA] at page 20, per Eko, JCA, held “The law espoused in Joe Iga v. Chief Ezekiel Amakri [1976] 11 SC 1; Gwani v. Ebule [1990] 5 NWLR [pt.149] 201; Vaswani v. Johnson [2000] 11 NWLR [pt. 679] 582 and recently applied by this Court in the unreported Oil Gas Export Free Zone Authority v. Dr. T. C. Osanakpo [CA/PH/366/2005 of 20th January 2009] is that where a creditor writes a demand letter which the supposed debtor fails to react to the silence of the latter leads to presumption of admission by conduct.” Applying these decisions to this case, I hold that the Defendant is presumed to have admitted the sum of N560, 000 claimed by the Claimant. Also, while proceedings are pending, the Defendant paid a total sum of N301, 000 paid in three instalments of N126, 000 in February 2016, N75, 000 in October 2016 and N100, 000 in April 2017 leaving a balance of N259, 000. In the circumstances, I find relief one proved and enter judgment in favour of the Claimant for the sum of N259, 000 [two hundred and fifty-nine thousand naira] being balance of the sum of N560, 000 claimed by the Claimant.

In relief two, the Claimant seeks 21% interest per month at the prevailing money market rate from October 2012 to November 2013 until the matter is determined and the Defendant pays up the entire sums owed to the Claimant. There is no evidence before the Court in proof of the claim for interest. Learned Counsel to the Claimant also did not address the Court on the claim for interests, but, even if he did, the address of Counsel cannot take the place of evidence. It is trite that the Court can only award a pre-judgment interest where there is an agreement for payment of interest or under mercantile custom or under a principle of equity such as breach of fiduciary duty. In such cases, the pre-judgment interest must be specifically pleaded and strictly proved. See the cases of United Bank for Africa Plc v. Mrs. Doreen Nkolika Oranuba [2013] LPELR-20692[CA] 49 and Olasunkanmi Greg Agbabiaka v. First Bank of Nigeria Plc [2006] LPELR-11756[CA] at page 21. In Berliet Nigeria Ltd. v. Alhaji Mustapha Kachalla [1995] LPELR-775[SC] at page 44-45, Ogundare, JSC held: “There clearly is a difference between award of interest pre-judgment where plaintiff must specifically claim such and prove it and the award of interest on a judgment-debt which is purely statutory and can only be awarded if there are provisions to that effect in the law or rules of the court.” Ordinarily in claims for arrears of salaries interest is not usually awarded to the successful party because the relationship of employer-employee does not envisage payment of interests on overdue salaries. I therefore find and hold that the claim for pre-judgment interest fails and is hereby dismissed. Pursuant to Order 47 rule 7 of National Industrial Court [Civil Procedure] Rules, 2017, I order that the Defendant shall pay interest on the judgment sum of N259, 000 [two hundred and fifty-nine thousand naira] and any portion thereof remaining unpaid at the rate of 10% per annum after 30 days from the date of this judgment on a reducing balance basis until the judgment sum is fully liquidated.

The Claimant in relief 3 claimed the sum of N5, 000,000 [five million naira] as general damages. In proof of the claim for general damages, the Claimant stated in paragraph 14 of her statement on oath that she suffered a lot and has spent a lot of resources trying to get the Defendant to pay the arrears of salaries which they owe her. She has also undergone a lot of emotional stress and is now physically broken since her futile attempt to get her salaries paid to her. It is my respectful view that in these circumstances award of general damages would be inappropriate. In Selcon Tannery Limited v. Mr. Bala Abubakar & Ors. [2013] LPELR-21412[CA] at page 21, it was held that in a case where the Court has entered judgment in favour of the Claimant for salaries and allowances it would be improper to award general damages. This is more so as the Defendant made part payment of the overdue salaries during the pendency of these proceedings. The claim for general damages is refused and accordingly dismissed.

On the whole, the Claimant’s case succeeds in part. For the avoidance of doubt, judgment is entered in favour of the Claimant for the sum of N259, 000 [two hundred and fifty-nine thousand naira] and any portion thereof remaining unpaid at the rate of 10% per annum after 30 days from the date of this judgment on a reducing balance basis until the judgment sum is fully liquidated. The claims for pre-judgment interest and general damages are hereby dismissed. Cost of N30, 000 is awarded against the Defendant in favour of the Claimant.