Mrs. Suraju Bello -VS- Institute of Strategic Management Nigeria

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

BEFORE HIS LORDSHIP, HON. JUSTICE IKECHI GERALD NWENEKA

DATE: 14thNovember 2019 SUIT NO. NICN/LA/508/2018

BETWEEN

SURAJO BELLO … CLAIMANT

AND

INSTITUTE OF STRATEGIC MANAGEMENT NIGERIA… DEFENDANT

JUDGMENT

1 By General Form of Complaint dated 9th October 2018, the Claimant claimed against the Defendant as follows:

An order that the Defendant pay to the Claimant his annual leave allowance for the year 2015 in the sum of N12, 600.00 [twelve thousand, six hundred naira].

An order that the Defendant pay to the Claimant his salaries for the months of January and February 2017 in the sum of N64, 976.06 [sixty-four thousand, nine hundred and seventy-six naira, six kobo].

An order that the Defendant pay the Claimant the difference of his salary increment for 4 years in the sum of N25, 200.00 [twenty-five thousand, two hundred naira].

An order that the Defendant remit to the Claimant his unremitted pensions in the sum of N234, 894.00 [two hundred and thirty-four thousand, eight hundred and ninety-four naira] to his AIICO pension fund account.

An order that the Defendant pay to the Claimant his ‘Non-Accident Bonus’ in the sum of N20, 000 [twenty thousand naira] per year for the 7 years he worked for the Defendant.

General damages: five hundred thousand naira only [N500, 000] for the pain, embarrassment and financial hardship underwent by the Claimant as a result of the withholding of the entitlement.

Cost of the action assessed at N500, 000 [five hundred thousand naira].

The Claimant filed with the complaint a statement of facts, list of witnesses, statement on oath, verifying affidavit, list of documents and copies of the documents. The originating processes were served on the Defendant on 11th October 2018. The Defendant did not file any defence processes and did not take part in the trial in spite of service of hearing notices on the Defendant and the presence in Court of its Finance and Human Resources Manager on 27th March 2019 and 2nd May 2019. Trial commenced on 4th February 2019. The Claimant adopted his statement on oath dated 9th October 2018 as his evidence in the suit and tendered 4documents marked as exhibits 1 to 4. Exhibit 1 is offer ofappointment dated 4thNovember 2010, exhibit 2 is the Defendant’s lettercaptionedtermination of employment dated 26th January 2017 directing the Claimant to resign, exhibit 3 is Claimant’s memo dated 30th January 2017 in furtherance of exhibit 2.Exhibit 4 is severance payment calculation for the Claimant. The case was thereafter adjourned to 27th March 2019 for cross-examination and defence. On 27th March 2019, the Defendant was represented by Oke Ibukun, the Finance and Admin Manager who asked for an adjournment to 29th April 2019. The Defendant was unrepresented on 29th April 2019 and on application by Claimant’s counsel, was foreclosed from cross-examining the Claimant. The case was thereafter adjourned to 2nd May 2019 for defence. The Defendant was represented on 2nd May 2019 by Oke Ibukun, the Finance and Admin Manager but did not file any defence process. The Defendant was therefore foreclosed from presenting its defence. In compliance with the Rules of the Court, the Claimant filed his final written address, which his counsel adopted as his final arguments in support of the Claimant’s case.

In his final written address learned counsel for the Claimant, Mr. C. M. Ohamuo, formulated one issue for determination to wit:

“Whether the Claimant is entitled to the reliefs sought?”

Canvassing the issue, Mr. Ohamuoapplied to withdraw reliefs one to three sequel to payment of N102, 000 by the Defendant. On relief 4, it was submitted that the evidence of the Claimant on his unremitted pension in the sum of N234, 894 as specified in exhibit 4 is unchallenged and deemed admitted. The cases of Levi v. Adikwu & Ors. [2018] LPELR-44261[CA] and First Equity SLC Ltd. v. Anozie [2015] 12 NWLR [pt.1475] 337 at 360 were cited in support. The Court was urged to enter judgment for the Claimant.

On the 5th claim, learned counsel referred to paragraph 17 of the Claimant’s statement on oath and argued that this evidence is unchallenged. Learned counsel conceded that the failure of the Defendant to call evidence does not result in automatic victory for the Claimant, but submitted that the effect of a party’s failure to call evidence in defence of a case against him is that he is presumed to have admitted the case made by the other party and the trial Court is bound to accept the unchallenged evidence. The case of Amakiri v. INEC [2014] 45 NLLR [pt.143] 304 at 322-323 was cited in support.He therefore urged the Court to enter judgment for the Claimant for the sum of N140, 000 being the Claimant’s entitlement to non-accident bonus for 7 years.

On the claim for N500, 000 general damages for emotional distress and financial hardship the Claimant endured, learned counsel referred to Elochin v. Mbadiwe [1986] NWLR [pt.14] 47 at 65and submitted that as a result of the Defendant’s actions, the Claimant was not able to take care of his family and was unable to get another job and had to borrow to make ends meet. He contended that the Claimant has discharged the evidential burden and urged the Court to enter judgment for the Claimant.

Claims one, two and three having been withdrawn are hereby struck out. No doubt, this is an undefended suit. I will adopt the issue for determination raised by the Claimant which is whether the Claimant is entitled to the reliefs sought?The law is trite that he who asserts must prove. See section 131 of the Evidence Act, 2011, which provides thus:

“[1] Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts shall prove that those facts exist.

[2] When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.”

See also the cases of Engr. George T. A. Nduul v. Barr. Benjamin Wayo & 2Ors. [2018] 7 SC [pt.111] 164 at 212 and Chemiron International Limited v. Stabilini Visinoni Limited [2018] 17 NWLR [pt. 1647] 62 at 78-79. Thus, the onus is on the Claimant to establish through his pleading and evidence his entitlement to judgment on his claims.

While it is true that the failure of the Defendant to file a defence and cross-examine the Claimant’s witness makes the Claimant’s evidence unchallenged and uncontradicted and liable to be accepted and acted upon by the Court; yet that does not automatically entitle the Claimant to judgment. The evidence presented by the Claimant must on its own justify the grant of the reliefs sought. Where the evidence presented by the Claimant cannot sustain his claims, it is bound to fail notwithstanding the absence of defence. See Mrs. Mulikatu Erinfolami v. Pius Oso [2011] LPELR-15357[CA] at page 18.

This case is for payment of outstanding entitlements. In proof of his claims, the Claimant, in his evidence in chief, testified that he was employed by the Defendant as a driver by letter dated 4th November 2010 which was admitted in evidence as exhibit 1. He was on a monthly salary of N30, 000 and worked diligently for 7 years until he was compelled to resign because his services were no longer required. He stated that the Defendant acknowledged receipt of his resignation on 30th January 2017 and on the same day advised him of his severance benefits. The letter advising him to resign and his letter of resignation were admitted in evidence and marked exhibits 2 and 3 respectively, while the calculation of his severance benefit was admitted in evidence and marked exhibit 4. The Claimant also stated that he accepted the calculation of his severance benefit as advised by the Defendant, but added that the Defendant owes him non-accident bonus of N20,000 for each of the 7 years he worked. He stated that in spite of the calculation, the Defendant refused to pay his outstanding salaries and remit his pensions and this caused him financial injury. He was thus constrained to approach the office of the Public Defender for legal assistance and, although the Defendant was represented by one Mrs. Ibukunola on several occasions who pleaded with him to be patient, several efforts to resolve the matter failed leading to this suit.

Reliefs one, two and three have been struck out leaving reliefs four, five, six and seven. In urging the Court to grant relief four, learned counsel for the Claimant referred to exhibit 4 and submitted that it was produced by the Defendant and has not been challenged. I have examined exhibit 4 and the evidence of the Claimant. I agree with learned counsel for the Claimant that exhibit 4 was produced by the Defendant and this evidence has not been challenged in any way. The Court is therefore bound to act on it. See Inspector James Abah & Ors. v. Jabusco [Nigeria] Ltd. [2007] LPELR-4325[CA] at pages 43-44. Accordingly, I find and hold that the Claimant has proved his entitlement to the sum of N234, 894.00 outstanding pension remittance.

The next relief is for an order that the Defendant pay to the Claimant his non-accident bonus in the sum of N20, 000 per year for the 7 years he worked for the Defendant. In urging the Court to grant this relief, learned counsel for the Claimant referred to paragraph 17 of the Claimant’s statement on oath. It states:

“17. That I am owed a ‘Non-Accident Bonus’ in the sum of N20, 000.00 [twenty thousand naira] per year for the 7 years in which I worked for the Defendant as I have never received this bonus.”

The last item on exhibit 1 provides for payment of non-accident bonus. It stipulates thus:

“This is an amount payable annually provided the driver is not involved in any accident or traffic offence in the preceding 12 months.”

Interestingly, while a fixed sum of money was attached to each benefit, there was no amount fixed for the non-accident bonus. Exhibit 4, which is a computation of Claimant’s terminal entitlement did not incorporate this head of claim. In paragraph 13 of his statement on oath, the Claimant stated thus:

“13. That I accepted the severance pay calculation done by the Defendant.”

This is an admission against interest. Having accepted the Defendant’s computation of his terminal entitlement, the Claimant cannot now be had to complain. See section 169 of the Evidence Act, 2011 and the case of United Bank for Africa Plc v. Hon. Sunday Johnson & Anor. [2008] LPELR-5062[CA] at pages 33-34, where Owoade, J.C.A., quoting Ibekwe, J.S.C., in Yoye v. Olubode & Ors. [1974] 9 NSCC 409 at 414 had this to say:

“Estoppel is an admission or something which the law views as equivalent to an admission. By its very nature, it is so important, so conclusive, that the party whom it affects is not allowed to plead against it or adduce evidence to contradict it.”

In addition, the Claimant did not state how the sum of N20,000 was arrived at and there is nothing before the Court to show that this is the yearly pay on non-accident bonus. In the circumstance, I find and hold that the Claimant has not proved his entitlement to this claim.

The next claim is for the sum of N500,000 [five hundred thousand naira] general damages for the pain, embarrassment and financial hardship the Claimant suffered due to the withholding of his entitlement. General damages are within the discretion of the Court to grant. However, general damages are not granted in vacuo or just for the asking. General damages are losses that flow naturally from the adversary and it is presumed by law. It is awarded by the Court to assuage a loss caused by an act of the adversary. See Cameroon Airlines v. Mr. Mike E. Otutuizu [2011] LPELR-827[SC] at page 31 and Mobil Producing Nig. Unlimited & Anor. v. Udo Tom Udo [2008] LPELR-8440[CA] at page 54. Having been paid his outstanding salaries and secured an order for remittance of his pension entitlements, it is my respectful view that the Claimant is not entitled to general damages. See Chief S. I. Agu v. General Oil Limited [2015] LPELR-24613[SC] at page 45. This claim therefore fails.

Relief 7 is a claim for cost of the action assessed at N500, 000 [five hundred thousand naira]. Generally, cost follows events and a successful party is entitled to his cost. By Order 55 rule 1 of the National Industrial Court of Nigeria [Civil Procedure] Rules, 2017, award of costs is subject to the discretion of the Court, which discretion, in all circumstances, must be exercised judicially and judiciously. The Claimant,in paragraphs 18, 19, 20, 21, 22 and 23 of his statement on oath, set out the steps he had taken to recover his entitlements. An employer who dispenses with the services of his employee on the ground that his services are no longer required ought to settle its obligations to the employee at the time of his disengagement. Subjecting the Claimant to the rigours of litigation to recover his due leaves a sour taste in the mouth. In the circumstances, I find and hold that the Claimant is entitled to cost of this action.

Order 55 rule 5 of the Rules of this Court provides:

“5. In fixing the amount of costs, the principle to be observed is that the successful party is to be indemnified for the expenses to which the party has been unnecessarily put in the proceedings.”

There is nothing in the file to show how much was paid for filing fees, but it is noted that the Claimant is always in Court whenever this case comes up and it is on record that he has been in this Court on eight occasions. In the circumstance, cost of N50,000 is awarded in favour of the Claimant against the Defendant.

On the whole, this case succeeds in part. Judgment is entered for the Claimant against the Defendant as follows:

The Defendant is hereby ordered to immediately pay into the Claimant’s AIICO pension fund account the sum of N234, 894.00 [two hundred and thirty-four thousand, eight hundred and ninety-four naira] representing his unremitted pensions.