IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE CALABAR JUDICIAL DIVISION
HOLDEN AT CALABAR
BEFORE HIS LORDSHIP HON. JUSTICE M.N. ESOWE
DATE 6TH JULY 2017 SUIT NO: NICN/CA/19/2015
BETWEEN:
MRS LILIAN UDEY MGBADO…………………………………………..CLAIMANT
AND
PROPETROL LTD (PROPEL)…………………………………………….DEFENDANT.
REPRESENTATIONS:
- S. Ogah Esq, with R. N. Arikpo Esq, and J. A. Onigbe, For the Claimant
Micheal Aro Esq, For the Defendant
JUDGEMENT.
This matter was instituted vide a general form of complaint, dated the 21st Day of May 2015. The claimant in this case sought the following reliefs;
- The Sum of N840, 000.00, Eight Hundred and Fourty Thousand Naira only, Representing the outstanding Salaries owed the Claimant.
- Damages in the sum of N5, 000,000.00 Five Million Naira only, for the Inconveniences, hardship, and trauma, suffered by the Claimant as a result of the Defendant’s refusal to pay the accrued Salaries.
- 21% Interest per annum on the Judgment Sum, until same is finally liquidated.
- N1, 000,000.00 One Million Naira only, being cost of prosecuting this Case.
SUMMARY OF FACTS.
The Claimant was the regional supervisor, in charge of the business of the defendant in Cross River state and AkwaIbom State. He was employed sometime in august 2010 at the Defendant’s petrol Station branch in Calabar as the account/Admin Officer, a position she held until 13thFebruary 2013 when she was re-issued a fresh Appointment letter to act as the relationship manager. She was further promoted to the rank, of Regional Relationship Personnel.
However, the Claimant’s employment was terminated on the 20th march 2015.
According to the Claimant, before the termination letter was issued, the company owed her salaryarrears of 6 months. The Particulars of which are as follows;
December 2013…… N 140, 000 = N140, 000.00
Jan. and Feb. 2014… N 140,000 x 2 = N 280,000.00
Jan, Feb, and March 2015 N140, 000 x 3 = N 420,000.00
Total N 840,000.00
DEFENSE.
The defendant admitted paragraphs 1 – 4 of the Statement of facts and denied all other paragraphs. They stated that an internal audit team was set to investigate the claimant and other staff in other to understand the LPO Execution process and sales report, where the following issues were established against the Claimant, as follows;
- Execution of 3 LPO’s without remitting the cash profit
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N75,800.00
- Inflated PR expenses to weight and Measure @N10,000.00
- Conflicts of interest and non-punctuality culture of the Claimant.
- Station accounting and reporting
- Inadequate management of petty Cash expenses at the station was observed by the audit team.
CLAIMANTS REPLY TO STATEMENT OF DEFENCE.
To the claimants, the termination of the employment was on the ground of gross misconduct and facts which by the defendants own assertion was unproved as contained in the termination letter of 20th March 2015.
The claimant stated further that she is not challenging the Unlawful termination of her employment, but that her claim is for payment of arrears of salary.
According to the Claimant, by the letter of the defendant dated 10thFebruary 2015, and titled investigating suspension, the defendant said the claimant would be paid full salary during the period, yet the claimant was not paid for January, February and March.
The defendant has not denied the allegation of non-payment of salaries of the claimant for the period alleged, rather have only discussed reasons for the termination without notice or payment in lieu of notice.
WRITTEN ADRESSES.
After several adjournments, the defendant was unable to file and serve its final address, on the claimant; hence the court ordered the claimant to adopt its final address.
CLAIMANT’S FINAL ADDRESS.
In their final address, Learned Counsel to the claimant submitted 2 issues for determination, to wit;
- Whether given the circumstances of this case, the defendant has not breached the contract of employment to entitle the claimant to the reliefs sought.
- Whether the defendant has by her pleadings any competent defense to the claim of the claimant.
ON ISSUE 1,
Counsel submitted that contract of employment existed between the claimant and the defendant. The contract required the claimant to render services for the defendant, which she was to be paid a monthly salary for the services rendered, and which was breached by the defendant, whereas the defendant did not lead any evidence nor plead facts to contradict same.
Counsel while referring the court to the case of NIGERIAN MERCHANT PLC VS GARBA, (2013) ALL FWLR (PT 688) AT 1007, RATIO 6, submitted that there is no gain saying the fact that the claimant who was owed the sum of N840, 000.00 before being abruptly laid off her job without notice and pay off would have suffered shock, great hunger and inconveniences resulting from the lack suffered as a result of withholding her money due to her wok or services she had already rendered. Counsel in conclusion, urged the court to resolve the issue in favor of the claimant.
ON ISSUE 2,
Counsel submits that the statement of defense constituted no defense at all, but a story of the life and style of the defendant. He argued that nothing has been placed before this court to deny or contradict the averments of the claimant.
The depositions on oath of the 2 witnesses, to counsel, do not reflect the fact alleged or averred in the defense, and the evidence on oath, do not derive from the pleadings. He referred the court to the case of OLUSANYA VS OSINYELE, (2013) ALL FWLR (PT 693) PG 1930 @1935.
Conclusively, Counsel urged the court to resolve both issues in favor of the claimant and grant all the reliefs sought.
COURT
Having gone through the case of both parties, the evidence tendered and admitted by this court, as well as the written address of Learned Counsel to the Claimant, this Court wishes to distill a lone issue for determination, and that is to say:
Whether given the facts and circumstances of this case, the court can grant the reliefs of the claimant?
The gravamen of the case at hand is that the claimant terminated the employment of the claimant and had not completed the payment of the salaries of the Claimant.
The totality of the defense is only on the circumstances surrounding the termination of the Claimants employment. The statement of defense is silent on whether or not the defendant should pay the claimant her arrears of salaries; neither did they lead any evidence to show that they were not indebted to the claimant.
In proof of their case, the claimant tendered Exhibits CW – CW1, Exhibits C2, C3 – C3 (2) C4, C4 (1) and exhibits C5 – C9.
It is settled law that facts not controverted are deemed admitted, and as such needs no further proof. More so, averments which no evidence have been adduced, do not constitute proof of such facts, unless such facts are admitted. See the case of ENECHUKWU VS NNAMANI (2009) ALL FWLR (PT 1087) @ 1097, RATIO 22.
In the instant case, the defendant filled its statement of defense and abandoned same here, without adducing any evidence in proof of same. The said statement of defense did not even discuss the crux of the case of the claimant, while the Claimant has laid sufficient evidence to substantiate his claims.
Based on all that I have discussed above, I have no other option than to deem the averments by the claimant as admitted by the defendants, and I so hold.
Flowing from the above, I answer the lone issue for determination, formulated earlier in the affirmative and in favor of the Claimant.
Consequently, I find merit in the case of the claimant, and the claims of the claimant is granted in part to the extent that,
Claim 1 succeeds and is granted in its entirety.
Claim 2 fails, and is not granted as same was not adequately proved.
Claim 3 succeeds and is granted in its entirety.
Claim 4 succeeds in part and is granted only to the extent that the claimant is entitled to the sum of N60, 000.00 (Sixty Thousand Naira Only) as cost for prosecuting this suit.
Judgment is entered accordingly
……………………………………………………………..
HON JUSTICE M.N.ESOWE
