Omenike David Vine -VS- Deap Capital Management & Trust Plc

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

BEFORE HIS LORDSHIP HON. JUSTICE B. B. KANYIP, PHD

DATE: FEBRUARY 16, 2018

SUIT NO. NICN/LA/06/2013

BETWEEN

Omenike David Vine – Claimant

AND

Deap Capital Management & Trust Plc – Defendant

REPRESENTATION

M. Ohamuo, for the claimant.

Oluwole Ajiroba Esq, for the defendant.

JUDGMENT

The claimant commenced this suit on 7th January 2013 by way of a complaint, statement of facts, list of witnesses, witness statement on oath, list and copies of the documents to be relied on at the trial. By the statement of facts, the claimant is praying against the defendant for:

The total sum of N1,129,301.40 only being owed the claimant arising from unpaid salaries and leave allowance which sum is due and payable to the claimant.
10% interest from the date the matter is filed till date of judgment and thereafter 5% interest till the final liquidation of the indebtedness and for such further cost as adjudged by this Honourable Court.

The defendant entered formal appearance and then filed its defence processes i.e. statement of defence, list of witnesses, witness statement on oath, list and copies of the documents to be relied upon at the trial. Despite filing these, the defendant did not defend the action. At the trial, the claimant testified on his own behalf as CW. Despite all the opportunities given, the defendant did not cross-examine CW, not to talk of entering its defence or filing a written address. As it is, therefore, this suit is more or less undefended. This, however, does not absolve the claimant the duty of proving his case. The claimant’s claim for N1,129,301.40 being unpaid salaries and leave allowance is a claim for special damages; and special damages must be claimed specially and proved strictly. An admission by the defendant is not even enough proof. See NNPC v. Clifco Nigeria Ltd [2011] LPELR-2022(SC).

The claimant was employed by the defendant by virtue of a letter dated 20th July 2007 as a trainee (Exhibit C1). His employment was, however, terminated vide a letter dated 28th March 2012 with effect from 31st March 2012 (Exhibit C6). That at the time of his termination his salary was N98,255 excluding tax and other deductions, referring to Exhibit C2, which is the letter of promotion where his salary was indicated as such; and that the defendant owed him 12 months’ salary from March 2011 to March 2012. Also that the defendant did not pay him the one month salary in lieu of notice of termination. That the defendant gave him a certificate of service indicating that he is not owing the defendant and neither is any of the defendant’s properties in his possession.

Given that the defendant did not defend this suit, the claimant submitted as per his lone issue for determination i.e. whether he is entitled to the reliefs sought that the pleadings of the defendant accordingly go to no issue as they are unsupported by any evidence. To the claimant, his salary between March 2011 and June 2011 was N43,833.00 after tax and other deductions, referring to Exhibit C1, which contains the claimant’s gross salary at employment. That it is unconscionable for him to work and not be paid his salary, citing Adigwe v. Tetrazzini Foods Ltd [2014] 45 NLLR (Pt. 83) 106 – 107 and the oral evidence of the claimant. That the evidence of the claimant remains unchallenged, which evidence include Exhibits C2, C4 and C5. That he gave evidence to show that the defendant owes him March 2011 to March 2012 salary plus one month salary in lieu of notice. The claimant concluded by urging the Court to grant the reliefs he seeks.

The main relief the claimant is claiming for is N1,129,301.40 owed to him by the defendant as unpaid salaries from March 2011 to March 2012. The claimant is also praying for interest on this sum. These are claims for special damages. To succeed in these claims, the claimant must show and entitlement to them and how he came by the sum of N1,129,301.40. See Mr. Mohammed Dungus & ors v. ENL Consortium Ltd [2015] 60 NLLR (Pt. 208) 39. Additionally, by Honk Sawmill (Nig.) Ltd v. Holf [1992] 4 NWLR (Pt. 238) 673 CA, as between the defendant (employer) and the claimant (employee), the onus is on the claimant as employee to prove that the defendant as employer employed him on a stipulated salary and that he worked for the employer during the relevant period. It is for the defendant (employer) to prove not only that he paid the employee his salary for work done by the claimant (employee) in the relevant period but also how much the salary that he paid the employee was. As it is, the claimant tendered his letter of employment (Exhibit C1), letter of promotion (Exhibit C2), letters of redeployment (Exhibits C3, C4 and C5), letter of termination (Exhibit C6) and certificate of employment (Exhibit C7). The certificate of employment (Exhibit C7) shows that the claimant was engaged on 1st August 2007 and left the service of the defendant on 31st March 2012 as Business Dev. Officer. The letter of termination (Exhibit C6) indicated that the claimant will collect his full and final entitlements less loans, debts, IOUs and other statutory deductions. In paragraph 9 of the claimant’s witness statement on oath, the claimant deposed that he claims as per his statement of facts. This is an adoption of all the averments in the statement of facts as evidence in chief; in paragraph 7 of which he averred that he worked up to 31st March 2012 without the defendant paying all his outstanding salaries and entitlements. In paragraph 9 of the adopted statement of facts, the claimant averred that the defendant owes him N1,129,301.40 as arrears of salaries for 12 months i.e. March 2011 to March 2012; with the additional one month salary in lieu of notice as per paragraph 8.

In proof of his salary, the claimant tendered Exhibits C1 and C2. By Exhibit C2 (the letter of promotion), the annual package of the claimant is N783,485. How the claimant came by an annual package of N1,216,704.00 as per paragraph 5 of the adopted statement of facts is not disclosed to the Court. Also how the claimant came to his total monthly remuneration being N98,255.00 is not disclosed to the Court since N783,485 divided by 12 months gives us N65,290.42 per month. As it is, therefore, what the claimant is entitled to as 12 months’ salary plus one month’s salary in lieu of notice is N783,485 plus N65,290.42, which gives us N848,775.42. This is the sum the claimant is entitled to from the defendant. I so find and hold.

The claimant asked for pre- and post-judgment interest. This Court does not grant pre-judgment interest. See Mr. Kurt Severinsen v. Emerging Markets Telecommunication Services Limited [2012] 27 NLLR (Pt. 78) 374 NIC. The claim for pre-judgment interest accordingly fails and so is dismissed.

On the whole, I find and hold that the claimant’s case succeeds but only in terms of the sum of N848,775.42, which it is hereby ordered must be paid by the defendant within 30 days of this judgment; failing which it shall attract 10% interest until it is fully paid.