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Olasupo Idowu Thomas -VS- Consolidated Discounts Limited

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

 

BEFORE HIS LORDSHIP, HON. JUSTICE IKECHI GERALD NWENEKA

 

DATE: 29thOctober 2019                     SUIT NO. NICN/LA/625/2014

 

BETWEEN

 

OLASUPO IDOWU THOMAS                             …     CLAIMANT

 

AND

 

CONSOLIDATED DISCOUNTS LIMITED           …     DEFENDANT

 

JUDGMENT

 

1             The Claimant averred that he was an employee of the Defendant as Manager II before his employment was terminated by letter dated 29th October 2014 but made effective on 31st October 2014. He acknowledged receipt of one month’s salary in lieu of notice. By complaint dated 23rd December 2014, he commenced proceedings against the Defendant seeking certain reliefs. Upon being served with the originating processes, the Defendant filed its memorandum of appearance, defence and counterclaim. The statement of defence and counterclaim, list of witness, statement on oath of the witness, list of documents and copies of the documents were deemed properly filed and served on 20th March 2015. The Claimant filed his reply to the statement of defence and defence to the counterclaim on 23rd March 2015 without an accompanying statement on oath. On 25th May 2017, the Defendant was granted leave to amend its statement of defence and counterclaim and file fresh statement on oath of its sole witness. The amended statement of defence and counterclaim and supporting processes are dated 5th June 2017 but filed on 6th June 2017. By leave of court granted on 13th December 2018, the Claimant amended his originating processes which were filed on 20th December 2018 wherein he claimed against the Defendant in his amended statement of facts as follows:

  1. A declaration that he is entitled to his benefits and return on his investments with the Defendant.

  1. An order compelling the Defendant to pay him the sum of N59, 789, 078.75 [fifty-nine million, seven hundred and eighty-nine thousand,and seventy-eight naira, seventy-five kobo] being his salary, benefits and investments with the Defendant.

  1. An order restricting the Defendant, its agents, privies, assigns or Police from forcibly taking the vehicle away from him.

Trial commenced on 3rdApril 2019 and was concluded on 5th April 2019. The Claimant testified for himself and tendered fivedocuments in proof of his claim marked exhibits 1 to 5. He was thereafter cross-examined. Learned counsel for the Defendant tendered one document through the Claimant during cross-examination marked exhibit 6. Mr. Babayi Tarofi, the Chief Finance Officer of the Defendant, testified on behalf of the Defendant and tendered two documents in proof of the defence and counterclaim marked exhibits DW1A and DW1B. He was cross-examined. Learned counsel for the Claimant tendered one document through this witness marked exhibit DW1C. In compliance with the Rules of the Court, parties filed their final written addresses, which their respective counsel adopted as their final arguments in support of their case.

  1. In the final written address filed by the Defendant, learned counsel for the Defendant, Olasupo Adebayo Esq., raised one issue for determination, to wit:

“Whether the Claimant has been able to discharge the burden of proof as would entitlement [sic] him to the reliefs claimed in the General Form of Complaint and Statement of Facts?”

Learned counsel for the Claimant formulated two issues for determination in the Claimant’s final written address, viz:

“1.    Whether the Claimant is entitled to his benefits form [sic] the Defendant, and whether he has proved his case to be entitled to so [sic]?”

“2.    Whether the Defendant [has] proved its counterclaim?”

In my respectful view, the issues for determination submitted by the Claimant are apposite and I will adopt it with some modifications. Consequently, the issues for determination in this case are:

  1. Whether the Claimant is entitled to the reliefs sought?

  1. Whether the Defendant has proved its counterclaim?

  1. Issue one: Whether the Claimant is entitled to the reliefs sought?

Learned counsel for the Defendant, Mr. Adebayo, submitted that there is uncontradicted evidence that the Central Bank of Nigeria intervened in the operations of the Defendant in September 2013 due to its inability to honour its obligations and appointed AMCON to take over the management, control and administration of the Defendant and AMCON injected fresh capital of N127 billion. He argued that faced with the dire financial situation of the Defendant, the CBN was compelled by statute to ensure that available assets are applied first to meet the Defendant’s obligations to its depositors and secured creditors who have priority over all other liabilities and referred to section 54 of the Banks and other Financial Institutions Act. He contended that the Claimant did not join issues with the Defendant on the financial situation of the Defendant as at the time of CBN intervention up to his termination and the onus is on him to show that the Defendant has funds to pay his terminal benefits. He urged the Court to act on the audited account which was tendered in evidence and marked exhibit DW1A. He relied on FCDA v. Nzelu [2014] 5 NWLR [pt.1401] 565 at 581. It was also submitted that the Claimant did not challenge the evidence of DW1 that the Defendant was in coma when AMCON took it over and has remained in coma. It was submitted that where an adversary fails to cross-examine a witness on a particular matter, the implication is that he accepts the truth of that matter as led in evidence; and the Court is not only entitled to accept the evidence but is bound to do so provided the evidence by its nature is not incredible. He referred to the cases of Bature v. NDIC [2016] 11 NWLR [pt.1523] 287 and Adefarasin v. Dayekh [2007] 11 NWLR [pt.1044] 89 in support.

 

Learned counsel argued that the Claimant relies on exhibit 4, the Board resolution, which is extraneous to the employment contract as no evidence was adduced to show that the content of exhibit 4 was implemented by the former management or incorporated into his contract of employment before the CBN intervention. He submitted that parties are bound by the terms of their contract and no internal memo or other document can vary the salary or entitlement of an employee. The unreported case of Ikhamate Bauhaus v. Venture Capital Ltd. & Anor., Suit no. NIC/ABJ/79/2012 was cited in support. Learned counsel further submitted that the former management squandered the Defendant’s assets and there is nothing left to pay the Claimant under the terms of his contract of employment. He argued that in civil cases the plaintiff should rely on the strength of his case and not on the weakness of the defence and referred to Akande v. Adisa [2012] 15 NWLR [pt.1324] 538.

It was contended that in determining the right of the Claimant to payment of terminal benefits, recourse must be had to the facts and circumstances of the case. Osakwe v. F. C. E. Asaba [2010] 10 NWLR [pt.1201] 1 was referred to. He explained that from the evidence of DW1 there are no funds to pay the Claimant’s terminal benefits.

In respect of the claim for refund of investment, learned counsel submitted thatthe instrument the Claimant issued for the investment was made out in the name of CDL Asset Management Limited and there is nothing on the face of the instrument explaining what the payment was for, and the proper thing would have been to sue the beneficiary of the cheque. In any event, he argued, the only proper party to complain about the investment is Conso-Cooperative Multipurpose Society Limited which made the investment on behalf of the Claimant. He referred to section 299 of the Companies and Allied Matters Act, 2010 and the case of New Res International Limited v. Oranusi [2011] 2 NWLR [pt.1230] 102 in support. It was therefore submitted that the claim for refund of investment has no basis in law and is bound to fail. The Court was urged to so hold.

On the counterclaim, learned counsel explained that the Claimant filed a defence to the counterclaim without an accompanying statement on oath.He argued that the defence is deemed abandoned and, in any event, the Claimant did not dispute his liability to the Defendant on theloan. He,therefore, submitted that the averments in the counterclaim are deemed admitted and facts admitted require no proof. The Court was urged to so hold.

In response, learned counsel for the Claimant, Ugochukwu Nwokocha Esq., submitted that the Defendant is still in business and thus responsible to its customers and staff. Learned counsel explained that the Defendant admitted that the Claimant was its employee until his employment was terminated.He submitted that an employment relationship is contractual and any claim arising from it must be founded on the terms and conditions of the contract. He explained that the Claimant tendered exhibits 1 and 4 and DW1 tendered the staff handbook which contain the terms of the contract of service and parties are bound by their contract. The case of Edilcon Nigeria Limited v. United Bank for Africa Plc [2017] LPELR-42342[SC]was cited in support.Learned counsel argued that in determining the employment rights and obligations of the parties, the onus is on the Claimant to place before the Court the contract of employment which provides for the right of the parties. The case of Aloysius v. Diamond Bank Plc [2015] 58 NNLR [pt.199] 92 at 137-138 was cited in support. He contended that the Claimant has discharged the burden of proof by the exhibits and his evidence in chief. He explained that the policy manual pages 13, 14, 17, 18, 19, 20, 21 and 22 and exhibit 4 contain the terms and conditions of employment. It was argued that the intervention of CBN and AMCON in the management of the Defendant is not sufficient to deny the Claimant of his entitlement. The Court was urged to give full weight to the unchallenged evidence of the Claimant and grant the claim. He referred to the case of Ighsewe v. Delta Steel Co. Ltd [2008] All FWLR 741 at 763.

 

On the claim for return on investment, it was argued that the Defendant having coerced the Claimant into paying the money to its subsidiary constructively guaranteed the payment and should be liable in case of default. It was also argued that a look at the audited account, exhibit DW1A, shows that the accounts of the Defendant and subsidiaries were audited by the same firm; and the Defendant could not prove that it had no control of the funds of CDL Asset Management Limited.

  1. I agree with learned counsel for the Claimant that there is no evidence before this Court that the Defendant has ceased to carry on business. The evidence of DW1 is that the Central Bank of Nigeria, in furtherance of its role as the prime regulator, reviewed the Defendant’s accounts and discovered financial recklessness by its top management and to prevent a massive run on the company by worried depositors and creditors, the CBN removed the entire management team and authorized AMCON to inject N100 billion capital in exchange for the shares of the Defendant; and to safeguard this investment, AMCON was authorized to take over the control and management of the Defendant. In spite of his submissions in paragraphs 4.15 to 4.17 of the Defendant’s final written address, learned counsel for the Defendant did not cite any authority to the effect that the take-over of the management of the Defendant by AMCON without more freezes the contractual rights of Defendant’s employees to terminal benefits.

On the issue of priority of debts, section 54 of the Banks and other Financial Institutions Act, CAP. B3 Laws of the Federation of Nigeria is clear. It does not vitiate other claims but gives priority to deposit liabilities over other liabilities. It provides that:

“Where a bank is unable to meet its obligations or suspends payment, the assets of the bank in the Federation shall be available to meet all the deposit liabilities of the bank and such deposit liabilities shall have priority over all other liabilities of the bank.”

Juxtaposed with section 15 of the Labour Act, CAP. L1, Laws of the Federation of Nigeria, which states that wages shall become due and payable at the end of each period for which the contract is expressed to subsist, it becomes obvious that the “other liabilities” in section 54 of BOFIA cannot be read to include staff salaries and entitlements and I so hold.

Also, the submission of Mr. Adebayo in paragraph 4.2 of the Defendant’s final written address is not supported by evidence. While DW1 in paragraph 10[ii] testified that the CBN authorized AMCON to inject N100 billion capital in exchange for the shares of the Defendant, learned counsel contended that AMCON had to inject fresh capital for the shares of the company to the tune of over N127 billion.  Counsel’s address must be based on evidence properly established in Court and any submission that is not based on the evidence before the Court goes to no issue. See Abraham N. Osadare & Ors. v. Liquidator, Nigeria Paper Mills Ltd. & Anor. [2011] LPELR-9269[CA] at page 36.

  1. This notwithstanding, 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 judgmenton his claims. The conditions of service are the bedrock upon which an aggrieved employee must found his case. They fix the rights and obligations of the parties and anaggrieved employee succeeds or fails upon the terms contained therein. See Calabar Cement Co. Ltd v. Abiodun Daniel [1991] 4 NWLR [pt. 188] 750 at 760 -761, A. V. Omenka v. Morison Industries Plc [2000] 13 NWLR [pt.683] 147 at 154 and Patrick Ziideeh v. Rivers State Civil Service Commission [2007] 1-2 SC 1.

 

Where the Claimant successfully discharges the burden thrust on him by law, a prima facie case is made out and the burden shifts to the Defendant to adduce counter evidence to sustain its defence. Where, however, the Claimant fails to make out a prima facie case there will be nothing for the Defendant to rebut and the case will be dismissed. See Okomu Oil Palm Company Limited v. O. S. Iserhienrhien [2001] 6 NWLR [pt.710] 660at page 674 and Engr. George T. A. Nduul v. Barr. Benjamin Wayo & 2Ors. [supra].

Parties agree that the Claimant was an employee of the Defendant and his employment was terminated on 31st October 2014 with payment of one month’s salary in lieu of notice. The Claimant’s claim is for payment of his terminal benefits, and in proof thereof, he tendered his letters of employment, promotion and termination and the board resolution of 18th September 2006 which were marked exhibits 1, 2, 3 and 4 respectively. Learned counsel for the Claimant tendered the staff policy and procedural manual through the defence witness which was marked exhibit DW1C.

In his evidence in chief, the Claimant testified that his basic salary was N6, 003,113 and he enjoyed other benefits in the sum ofN13, 173,879.45. He stated that as at 30th October 2014, his net entitlement was N59, 789,078.75 after deduction of N2, 864, 651.25purchase consideration for the Volkswagen Passat car and N1, 352,083.21 outstanding loan obligation. He also stated that his employment was terminated on 31st October 2014. He admitted that the Defendant gave him a Volkswagen Passat car, as official car valuedatN2, 864,651.25 and which sum should be deducted from his benefits. He further stated that the Defendant has not paid his entitlements as stipulated in the Board Resolution. The Claimant stated that he made some investments in CDL Assets Management which have not been settled. A copy of his cheque for N300, 000 to CDL Assets Management Limited was admitted in evidence and marked exhibit 5. He acknowledged receipt of the Defendant’s letter demanding for a return of the Volkswagen Passat car but stated that he is holding the vehicle as a lien for his unpaid entitlements. Under cross-examination he confirmed return of the Volkswagen Passat car to the Defendant after some pressure and that paragraph 15 of his statement on oath is not correct. He acknowledged his indebtedness to the Defendant in the sum of N1, 352, 083.21 and that the Defendant asked him to submit a repayment plan for the loan. He stated that he does not know the interest rate on the loan.

  1. From the above, it is clear that the basis of the Claimant’s claims is exhibits 2, 4 and 5. Claims 1 and 2 are for payment of his terminal benefits and return on investment. A terminal benefit has been described as a lump sum of money awarded in contract at expiration of employment. It is earned and accruable to the employee when his services are no longer required. A terminal benefit is calculable from the terms and conditions of employment. See Julius Berger Nigeria Plc v. Godfry Nwagwu [2006] LPELR-8223[CA] at page 28.

What is the evidence in support of the claim for terminal benefits? This is contained in paragraphs 6, 7, 8, 11 and 12 of the Claimant’s amended statement on oath and exhibits 2 and 4. In paragraph 12 of his amended statement on oath, the Claimant stated thus:

“12.  That the Defendant has not paid me my entitlements as stipulated by the board resolution of the company dated Monday, 18th September 2006.”

Thus, exhibit 4 is the foundation of the claim for terminal benefits. Although, learned counsel for the Claimant referred to exhibit DW1C in the Claimant’s final written address, the Claimant did not plead the staff policy and procedural manual, and did not give evidence on it. Parties are bound by their pleadings and any evidence on facts not pleaded goes to no issue. See the case of Omika v. Isah [2011] LPELR-4564[CA] at page 30. This is so notwithstanding the oblique reference to the staff handbook in paragraph 3[viii] of the amended statement of defence and counterclaim and paragraph 10[vii] of the Defendant’s witness’ statement on oath. The submission of learned counsel for the Claimant on exhibit DW1C, therefore, goes to no issue as the submission of counsel cannot be a substitute for pleading or evidence. See Gbadamosi v. Tolani [2010] LPELR-3733[CA] at page 20.

  1. While exhibit 2 specifies the Claimant’s salary and allowances, it does not make provision for payment of terminal benefits.Exhibit 4 makes provision for staff retirement benefit scheme but, as rightly argued by learned counsel for the Defendant, the content of exhibit 4 was not incorporated into the Claimant’s contract of employment. Learned counsel for the Claimant did not counter this argument. The law is settled that where a party fails to counter any argument on an issue validly raised by the opponent, he is deemed to have conceded the issue. See Nwankwo & Ors. v. Yar’Adua & Ors. [2010] 3-5 S.C. [pt. III] 1 at 23 and Donbraye & Anor. v. Preyor & Ors. [2014] LPELR-22286[CA] at page 70.

 

Invariably, the Claimant is deemed to have conceded that exhibit 4 was not incorporated into his contract of employment. In any event, there is nothing on the face of exhibits 1 and 2 to show that exhibit 4 was incorporated into the Claimant’s contract. Consequently, having not been incorporated into the Claimant’s contract of employment, whether expressly or by reference, exhibit 4 does not define the terms and conditions of that contract. Its provisions cannot, therefore, be read into the contract between the Claimant and the Defendant. This is so because parties are bound by the contract they voluntarily entered into and cannot act outside those terms, neither can they read into it a term which is not embodied therein. See Gado v. Iliyasu [2014] LPELR-23066[CA] 19-20.

I stated earlier in this judgment that the Claimant’s claim for terminal benefits is rooted in exhibit 4; and having found that exhibit 4 was not incorporated into his contract of employment, it means that the foundation of the claim has been knocked off; and there is no documentary evidence in support of the claim for terminal benefits. The question, then, is whether the Claimant’s oral evidence is sufficient to ground the claim for terminal benefits? I do not think so. The evidence in support of the claim for terminal benefits is set out in paragraph 8 of his statement on oath. Item one is a claim for N1, 744, 247.00 outstanding leave allowance owed to him. The number of earned leave days were not stated. The basis of computation of the sum of N1, 744, 247.00 was equally not stated. It is not the business of a Court of law to speculate but to decide cases on hard facts established before it. See Iwayemi & Anor. v. Akinbo [2016] LPELR-40136[CA] at pages 22-23 and Ecobank Nigeria Limited v. Anchorage Leisures Limited & Ors. [2016] LPELR-40219[CA] at pages 34-35. Item two is a claim for N54, 755, 617.14 gratuity for 6 years and 3 months. Again, the basis of computation of this amount was not set out in his pleading and statement on oath. His entitlement to this sum was equally not pleaded. The same is true of item four, the claim for N7, 205, 949.07 insurance contributions. There is no paragraph in the amended statement of facts or statement on oath detailing the Claimant’s insurance contributions or how it was calculated. The term of his contract of employment entitling him to these heads of claim was also not specified. Courts are not father Christmas. In Congress for Progressive Change v. Independent National Electoral Commission & Ors. [2011] LPELR-8257[SC] at page 57, the Supreme Court held inter alia:

“A court of law can only pronounce judgment based on credible evidence presented and properly established before it. A court of law is not at liberty to go outside the evidence and search for extraneous evidence in favour of the parties.”

Clearly, there is no credible evidence to substantiate these claims. In the circumstance, I come to the irresistible conclusion that the Claimant has not proved his claim for terminal benefits.

  1. The next head of claim is item three which is a claim on investment made in CDL Asset Management Limited. Learned counsel for the Defendant argued that the instrument issued for the investment was made out in the name of CDL Asset Management Limited and there is nothing on the face of the instrument explaining what the payment was for, and the proper thing would have been to sue the beneficiary of the cheque. In any event, he argued that the only proper party to complain about the investment is Conso-Cooperative Multipurpose Society Limited which made the investment on behalf of the Claimant. Contrariwise, learned counsel for the Claimant argued that having coerced the Claimant into paying money to its subsidiary, the Defendant constructively guaranteed the payment and should be liable in case of default. It was further argued that the handlers of the company were staff of the Defendant and the accounts of the subsidiaries and the Defendant were audited by the same firm. Learned counsel further argued that the Defendant could not prove that it had no control of the funds of CDL Asset Management Limited.

First, let me say that there is no evidence before this Court that Conso-Cooperative Multipurpose Society Limited made any investment on behalf of the Claimant. Exhibit 5 was issued by the Claimant directly to CDL Asset Management Limited. The Claimant is therefore the proper party to complain on this investment and I so hold.

The evidence in proof of this claim is paragraph 13 of the statement on oath and exhibit 5. In paragraph 13, the Claimant stated thus:

“13.  That I made some investments with the Defendant on its CDL Assets Management [CAM]which investments have not been settled by the Defendant.”

Exhibit 5 is the acknowledged copy of cheque to CDL Asset Management Limited. There is nothing on the face of exhibit 5 to indicate what the payment was for. There is equally no correspondencebetween CDL Asset Management Limited and the Claimant on the purpose of the payment. In paragraph 5 of the amended statement of defence and counterclaim, the Defendant put the Claimant to the strictest proof of his investment claim. It averred thus:

“5.    With particular reference to paragraph 10, the Defendant avers that the Claimant is a [sic] not and was never a shareholder of the CDL Asset Management and puts the Claimant to the strictest proof thereof.”

The Claimant was, by the state of the pleadings, required to go beyond merely tendering a copy of the cheque to show that it was intended for the purchase of shares of CDL Asset Management Limited. This was not done. The Claimant has therefore failed to prove his investment in CDL Asset Management Limited.

It needs to be stated that the role of the Defendant in this investment is not clear from the evidence before the Court. There is no evidence that the Claimant was coerced into issuing exhibit 5. Also, there is no evidence that the Defendant guaranteed the investment. Consequently, the submission of learned counsel for the Claimant that “the money was paid, by the persuasion of the defendant, who used its position to coerce the claimant to pay the money to its subsidiary” is not borne out by the evidence before this Court and goes to no issue. See Abraham N. Osadare & Ors. v. Liquidator, Nigeria Paper Mills Ltd. & Anor. [supra].

  1. It is the law that the rights of a shareholder on any investment is determined by the terms of issue and Articles of Association of the issuing company. See section 114[a] of the Companies and Allied Matters Act, 2010 which provides thus:

“Subject to the provisions of this Act, the rights and liabilities attaching to the shares of a company shall-

  1. be dependent on the terms of issue and of the company’s articles”

The terms of the investment and the articles of association of CDL Asset Management Limited are not before this Court. In any event, that enquiry is beyond the jurisdiction of this Court. Be that as it may, the issue cannot be effectually resolved without CDL Asset Management Limited; which is thus a necessary party to these proceedings and ought to have been joined in the suit. The failure to join CDL Asset Management Limited robs the Court of jurisdiction to determine the claims for return on investments made in CDL Asset Management Limited. See Shell Petroleum Development Company & Anor. v. Daniel Pessu [2014] LPELR-23325[CA] at page 57. The result is that there is no evidence in proof of the claim for return on investment. Reliefs one and two have, therefore, not been proved.

  1. Relief three is for an order restricting [sic] the Defendant, its agents, privies, assigns or Police from forcibly taking the vehicle away from the Claimant. The evidence before the Court shows that the vehicle has been returned to the Defendant. An injunction does not lie to restrain a completed act. See NBM Bank Limited v. Oasis Group Limited [2004] LPELR-5938[CA] at page 11.This claim is therefore otiose.

In the final analysis, I find and hold that the Claimant has not discharged the burden of proof thrust on him by law and he is thus not entitled to the reliefs as claimed in his amended statement of facts. Having not made out a prima facie case, there is nothing for the Defendant to rebut. Consequently, a consideration of the defence is unnecessary. See Okomu Oil Palm Company Limited v. O. S. Iserhienrhien [supra]and Engr. George T. A. Nduul v. Barr. Benjamin Wayo & 2Ors. [supra].

  1. This leads me to issue two which is whether the Defendant is entitled to judgmenton its counterclaim?By the amended statement of defence and counterclaim, the Defendant claimed against the Claimant for:

  1. The sum of N1, 352,083.21 [one million, three hundred and fifty-two thousand, eightythree naira, twenty-one kobo] being the Claimant’s outstanding debt obligation to the Defendant as at 31st October 2014 which the Claimant has refused to pay despite repeated demands.

  1. Interest at the rate of 21% from 31st October 2014 until judgment and thereafter at the rate of 10% until final liquidation.

  1. The sum of N250, 000.00 [two hundred and fifty thousand naira] only as legal cost of instituting this counterclaim.

In his written address, learned counsel for the Defendant submitted that there was a defence to the counterclaim without an accompanying statement on oath, which means that the defence has been abandoned. It was also submitted that the Claimant did not dispute his liability to the Defendant on the loan. He argued that the averments in the counterclaim are deemed admitted and facts admitted require no proof. He relied on Bature v. NDIC [2016] 11 NWLR [pt.1523] 287 and urged the Court to so hold.Learned counsel for the Claimant conceded to this issue and urged the Court to remove the sum of N1, 352,083.21 from the Claimant’s entitlement.

 

Ordinarily, the burden of proving the counterclaim rests squarely on the Defendant/counterclaimant. See section 131 of the Evidence Act, 2011, which has been reproduced above and the case of U. B. N. Plc v. Ravih Abdul & Co. Ltd. [2019] 3 NWLR [pt.1659] 203 at 224. However, the Claimant in paragraph 7 of his amended statement of facts and paragraph 8 of his amended statement on oath and under cross examination admitted his indebtedness to the Defendant in the sum of N1, 352,083.21. Learned counsel in the Claimant’s final written address conceded to this issue. The law is trite that facts admitted require no further proof. See section 123 of the Evidence Act, 2011 and U.T.C Nigeria Ltd. v. Samuel Peters [2009] LPELR-8426[CA] at page 36.

Consequently, I find and hold that relief one of the counter-claim has been proved.

  1. The next claim is for 21% interest from 31st October 2014 until judgment and thereafter at the rate of 10% until final liquidation. The basis of award of interest in a suit is settled. The power of the Court to award interest before judgment is based on statute, contract, common law or some equitable principles. The nature of pre-judgment interest makes it mandatory that facts in support thereof must be pleaded and evidence led to support the claim. See Olam [Nigeria] Limited v. Intercontinental Bank Limited [2009] LPELR-8275[CA] at pages 60-62. There is no pleading and evidence in support of the claim for pre-judgment interest. There is a difference between pleading and reliefs claimed, one cannot be used for the other. See Matthew Iyeke & 25Ors. v. Petroleum Training Institute & Anor. [2019] 2 NWLR [pt.1656] 217 at 240. The claim for pre-judgment interest has not, therefore, been proved.

This Court is empowered by Order 47 rule 7 of the National Industrial Court of Nigeria [Civil Procedure] Rules, 2017 to award interest on any judgment sum. Having held that relief one for the sum of N1, 352,083.21 has been established, I hold thatthe Defendant is,in the circumstances, entitled to post-judgment interest.

  1. The next relief is a claim for the sum of N250, 000 [two hundred and fifty thousand naira] only as legal cost of instituting this counterclaim. This claim is in the nature of a claim for special damages which must be specifically pleaded and strictly proved. See U. T. C. Nigeria Ltd. v. Samuel Peters [supra] at page 34. The facts giving rise to this claim were not pleaded and there is nothing in the Defendant’s witness’ statement on oath in proof thereof. This claim, therefore,has not been proved.

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 Defendant/counterclaimant being the successful party is entitled to cost.

  1. On the whole, the Claimant’s claim fails in its entirety and it is hereby dismissed. The counterclaim succeeds in part. Judgment is entered in favour of the Defendant for the sum of N1, 352,083.21. The judgment debt shall be settled within 30 days from today failing which it shall attract interest at the rate of 5% per annum until it is fully liquidated. Cost of N10, 000 is awarded in favour of the Defendant against the Claimant. Judgement is entered accordingly.

………………………………………….

IKECHI GERALD NWENEKA

JUDGE

29/10/19

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