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ZAID O. AMMEN & 7 ORS -VS- CHANCHANGI AIRLINE NIGERIA

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN IN LAGOS

BEFORE HIS LORDSHIP,

Hon. Justice B.A. Adejumo, OFR…………………President

Date:  9TH JANUARY, 2018                

 SUIT NO. NICN/LA/463/2013

BETWEEN:

  1. ZAID O. AMMEN
  2. OSCAR ERIAMIATOE
  3. LAWAL ABDULFATAI                                   
  4. JOSEPH EDEM
  5. GODWIN OSEGHALE
  6. DANIEL NWAKIBE
  7. YAKUBU IBRAHIM
  8. DESMOND OMOREGIE    

               

              CLAIMANTS

 

AND

 

CHANCHANGI AIRLINE NIGERIA LIMITED

                  DEFENDANT

REPRESENTATION:

ABRAHAM O. IMOISILI, ESQ., FOR THE CLAIMANTS.

NO LEGAL REPRESENTATION FOR THE DEFENDANT.

 

 

                                       JUDGMENT

 

This action was commenced vide a General Form of Complaint dated 29th August, 2013 and filed on the same day. The reliefs sought by the Claimants against the Defendant are:

  1. A DECLARATION that the appointments of the claimants with the defendant still subsist having not been terminated in accordance with laid down procedures as envisage in their respective letters of appointment or otherwise.
  2. AN ORDER of this Honourable Court directing that the defendant pay all the salaries  and allowances of the claimants as follows:

(a).    The 1st claimant to be paid:

  1. July 2010- August 2010 Salary                   N356, 000.00

ii        July 2010- August 2010 weekly allowances-                   N10,000.00

iii.      November, 2010 – August 2013 Salary-               N4,608,000.00

  1. November, 2010 – August 2013 Weekly allowance-       N77, 000.00
  2. 2008-2012 leave allowance –                                         N256,000.00

Total:                   N6,000,000.00

(b).    The 2nd  claimant to be paid the sum of:

  1. July 2010- August 2010 Salary                                      N233,516.00

ii        July 2010- August 2010 weekly allowances-                   N10,000.00

iii.      November, 2010 – August 2013 Salary-               N4,203,000.00

  1. November, 2010 – August 2013 Weekly allowance-       N770, 000.00
  2. 2008-2012 leave allowance –                               N2,233,800.00

Total:                   N5,450,016.00

  1. The 3rd– 7thClaimant’s each to be paid:
  2. July 2010- August 2010 Salary –                          N97, 977.60

ii        July 2010- August 2010 weekly allowances-                   N6,000.00

iii.      November, 2010 – August 2013 Salary-               N1,763,563.00

  1. November, 2010 – August 2013 Weekly allowance-       N462, 000.00
  2. 2008-2012 leave allowance –                                         N122,470.00

Total:                   N2,452,016.01

  1. The 8thClaimant to be paid:
  2. July 2010- August 2010 Salary                                      N83, 440.00

ii        July 2010- August 2010 weekly allowances-                   N6,000.00

iii.      November, 2010 – August 2013 Salary-               N1,501,920.00

  1. November, 2010 – August 2013 Weekly allowance-       N462, 000.00
  2. 2008-2012 leave allowance –                                         N83,440.00

Total:                   N2,136,800.00

Whereof the total amount claim by the claimants is N25, 846, 866.00 (Twenty Five Million Eight Hundred and Forty Six Thousand Eight Hundred and Sixty Six Naira) only.

  1. Interest at the rate of 20% per annum from November 2010 on the said sum of N25, 846, 866.00 until judgment and thereafter at the rate of 10% until final payment.
  2. The sum of N1,000,000.00 on indemnity basis being money incurred on solicitors fees.
  3. The cost of this action

ALTERNATIVELY

  1. An order of this Honourable Court directing the defendant to pay all the arrears of salary and allowances to the defendant from November 2010 to date.
  2. AND A FURTHER ORDER of the Honourable Court directing the Defendant to terminate the appointment of the claimants in accordance with laid down procedures and pay their gratuities forthwith.

The Claimantsalso filed their respective witness statement on oath, the Claimants’ list of witnesses, and other documents they intend to rely on in prove of their case.

Appearance was entered for the Defendantvide a Memorandum of Appearance dated 8th October, 2013 and filed on the same day. Defendant’s statement of defence, the witness statement on oath and other documents the defendant intended to rely on was filed alongside the statement of defence.

In furtherance of their case, the Claimants filed a reply to the statement of defence. The Claimants also filed further witness statement on oath in reply to the Defendant’s statement of defence.

It is important to mention that the 1st, 2nd, 5th, 7th and 8th claimants discontinued the suit against the defendant vide a notice of discontinuance dated 3rd November, 2015 but filed on the 10th November, 2015 which was granted by this court thereby leaving only the 3rd, 4th and 6th claimants as parties to this suit.

It is also pertinent to mention that after the testimonies of the claimants’ witnesses, the defendant’s counsel was given series of opportunity to cross-examine these witnesses to no avail. The court had no choice than to foreclose the defendant from cross-examining the claimants’ witnesses. In the same vain this matters was adjourned at the instance of the defendant to call its witness(es) on 02/05/14, 5&6/05/2015, 23/06/ 2015, 07/10/2015, 11/12/2015, 02/03/2016, o3/05/2016,09/06/2016 and 11/01/2017. Despite all these adjournments neither the defendant nor its counsel made any attempt to appear before this Honourable Court to defend the case against it. It was in view of the above that the case of the defence was closed and this court ordered written addresses to be filed by the parties.

The 3rd, 4th and 6th claimants’ final written address was dated 27th April, 2017 but was filed on 13th June, 2017. The said final written address was settled by Abraham O. Imoisili, Esq. The defendant did not file any final written address.

The written address of the claimants was adopted by their counsel on 6th November, 2017 after which the matter was adjourned for judgment. I will now proceed to summarize the submissions made by claimants’ counsel in his final written addresses.

Claimants’ counsel distilled a lone issue for determination in his final written address thus:

Whether from the facts and circumstances of the instant case inclusive of all the evidence before the Honourable Court the 3rd, 4th and 6th claimants are entitled to the reliefs sought as per the statement of claim.

ARGUMENT OF THE LONE ISSUE FOR DETERMINATION

Learned counsel for the claimants commenced his argument by stating that although the general rule is that he who asserts must prove, he however submitted that once a party who makes an assertion has established same, the onus shifts to the party against whom judgment would be given if no evidence is adduced.

Citing S. 131(2) of the Evidence Act, 2011 and the cases of UNION BANK OF NIGERIA LIMITED V. PROF A.O. OZIGI (1994) 3 NWLR PT.333 P.385, NIGERIA MARITIME SERVICE LTD V. AFOLABI (1978)2 SC @ 84,  IKE V. UGBOAJA (1993) 6NWLR PT.301 P. 539, counsel argued that the claimants have established  a prima facie case of non-payment of salaries consequent upon which the onus now shifts to the defendant to justify its actions in accordance with the provisions of the law. Counsel submitted that the statement of defence of the defendant that could be relied upon by this court is not pleaded and facts not pleaded goes to no issue and cannot be relied upon by a court of law in reaching its decision. He cited the cases of CIVIL DESIGN LTD V. SCOA (2007) 29 NSCGR 1298; ALHAJI SANNI SHAIBU V. J.O BAKARE (1884)12 SC 187to support his argument.

Claimants’ counsel further argued that paragraphs 3(g-h) of the Defendant’s statement of defence clearly amounts to an admission of the fact that at least as at 8th October, 2013 when the said Statement of defence was filed, the defendant was a going concern since it clearly states that the defendant repaired one of its aircraft and procured another on via lease, meaning that as at October, 2013 the defendant was fully operational and with two aircrafts for that matter but still did not direct the 3rd, 4th and 6th claimants to resume work.

Claimant’s counsel further contended that paragraph 3(k) of the defendant’s statement of defence contained fundamental admission which dispenses with the need for the claimant to call any further evidence to establish the fact that the employment of the claimants has not been terminated. Citing the case of AYOKE V. BELLO (1992)10 NWLR PT. 218 P. 380counsel posited that facts admitted needs no further proof.

In claimants’ counsel further submission, he posited that since the 3rd, 4th and 6th claimants contract of employment with the defendant has not been terminated, then the said claimants are thus entitled to salaries and allowances for the entire period in which they continue to be employees of the defendant. He further argued that by the provisions of S.17 (1) of the Labour Act 1974 it is the responsibility of the defendant to provide work for the claimants.

Counsel is of the view that the above-cited  provisions of the Labour Act admits of only 2 exceptions as contained in its paragraphs (a) and (b) respectively i.e. in a situation of emergency beyond the control of the employer which must not exceed one week and in the event of suspension of an employee as punishment for an offence. Counsel argued that none of the above situation is applicable in the instant case. It is the submission of counsel that by the provision of S. 20(1-3) of the Labour Act, the issue of redundancy never arose and as such the defence of redundancy is not available to the defendant.

It is the position of claimants’ counsel that the claimants have all clearly stated the value of their entitlements and salaries which was particularly stated and contained in paragraph 5 of the statement on oath. Counsel further argued that the defendant on its part did not specifically deny the value of the salaries and entitlements of the claimants and to that extent the value of the salaries and entitlements of the claimants are deemed to have been proved. He argued that an attempt by the defendant to deny the particulars of salaries and entitlements at paragraph 2 of the statement of defence is vague, generic, evasive and ambiguous and therefore amounts to no denial in law. He cited the cases of EL-TIJANI V. SAIDU (1993) 1 NWLR PT. 268 P.246and JACOBSON ENGINEERING LTD V. UBA LTD (1993)3 NWLR PT. 283 P. 586 to support his argument that mere denial of a detailed, factual situation without attacking the veracity  or authority of details contained therein is in law not a denial.

He submitted that the defendant having not given contrary particulars of the value of the 3rd, 4th and 6th claimants’ salary cannot therefore be said to have adequately denied same.

Counsel submitted that in the light of the evidence before this Honourable Court and more particularly in view of clear admission of the 3rd, 4th and 6th claimants’ claim by the defendant, he urged this court to grant the reliefs of the 3rd, 4th and 6th claimants as contained in the statement of facts.

Let me reiterate that the defendant never cross-examined the claimants’ witnesses despite series of adjournments for that purpose and neither did it call any witness in proof of its case. I will therefore rely only on the evidence of the claimants’ witnesses in determining this suit.

I have carefully considered all the processes filed and exchanged by the parties. I have also given adequate thoughts to the arguments canvassed in the case as well as statutory and judicial authorities to which the attention of this Honourable  Court have been drawn.

I will at this juncture proceed to determine the substance of the instant suit. In determining this suit, I will adopt, for obvious reason, the single issue formulated for determination by the claimants’ counsel in his written address which is:

Whether from the facts and circumstances of the instant case inclusive of all the evidence before the Honourable Court the 3rd, 4th and 6th claimants are entitled to the reliefs sought as per the statement of claim.

 

In resolving the issue for determination I consider it apposite to mention that this court’s decision can only be premised on facts, evidence and arguments before it. The crux of the case of the claimants is that the defendant, vide a letter dated 24th August, 2010, asked them (claimants) to proceed on a 2 month compulsory/mandatory leave without pay on the account that the only aircraft of the defendant was grounded. Claimants further contended notwithstanding the fact that the defendant resumed full blown operation after the expiration of the compulsory leave, the defendant by a memo dated 1st November, 2010 decided to extend the claimants’ compulsory leave for a further one month i.e. from 1st November, 2010 to 30th November, 2010.

According to the claimants, they made series of demand for the payment of their outstanding salaries and allowances to no avail but the defendant was pleading with them to be patient.

Let me foremost mention that the law is trite that the defendant is deemed to have abandoned its defence having failed to adduce any evidence in support of same. In the case of MILITARY GOVERNOR OF LAGOS STATE V. ADEYINKA (2012) 5NWLR PT. 1293 P.304 @P. 337 RATIO 7 it was held that “in the absence of evidence to support the statement of defence, the pleadings of the appellants were deemed abandoned. The defence is deemed abandoned for all time”. I also refer to the case of OKECHUCHWU V. OKAFOR (1961) 2SCNLR 369.

In the same vein, it was held in the case of S.F.&P. LTD V. NDIC(2012) 10NWLR PT. 1309 P.529 RATIO 15 @P. 549 PARAGRAPHS E-F that “pleadings on which no evidence is led goes to no issue”. I further refer to the cases CAP PIC. V.VITAL INVESTMENT LTD (2006) 6 NWLR PT. 976 P.220 and AKANDE V. ADISA (2012) 15 NWLR PT. 1324 P. 538 @P.548 RATIO 12.

I have carefully looked at the letter of employment of the claimants and the letter of confirmation of their appointments. I have also looked at the letter written by the defendant directing the claimants to proceed on compulsory leave. It is not in dispute that the defendant owes the claimants outstanding salaries and allowances. That was never in dispute. The contention of the claimants, to my mind, is that the defendant deliberately refused to pay their salaries and allowances despite the fact that it was operational.

It is the contention of the claimants’ counsel that the defendant admitted the fact that it repaired one of its aircraft and was operational as at the time this suit was initiated in court. He argued that facts admitted needs no further proof. I would however want to disagree with the claimant on this point. My disagreement is premised on the provisions of Sections 135, 136 and 137 (1) of the Evidence Act, CAP E14 of the Laws of the Federation, 2004 which provide that whoever deserves any court to give judgment as to any legal right or liability dependent on the existence of any fact which he asserts must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said the burden lies on that person. I refer to the case of AKANDE V. ADISA (2012) 15 NWLR PT. 1324 P. 538 @P.548 RATIO 4 to buttress my position.

I have carefully perused the statement of defence of the defendant in this case and cannot find any admission being relied on by the claimants beyond the fact that the defendant admitted to leasing its licence to another company, Jordan airline, to operate under chanchangilicence. The defendant clearly denied that it resumed business activities till date. This to my mind places the onus to proof that the defendant is carrying on business activities on the claimant. The law is trite that in all civil cases, the plaintiff should rely on the strength of his case. In the case of AKANDE V. ADISA (SUPRA) P.565 PARAGRAPH A, it was held that “in all civil cases, the plaintiff should rely on the strength of his case rather than the weakness of the defendant’s case. All the law requires of him is to discharge the burden placed on him by the law.  The rule changes if the plaintiff finds in the evidence of the defence facts which strengthen his own case”.

In the instant case, it is the duty of the claimants to place before this court sufficient evidence to prove that the defendant is still in business. In my view, the claimants have not been able to place before this court sufficient and convincing evidence to show that the defendant’s refusal to pay their outstanding salaries and allowances is deliberate.

To further buttress my view, let me take the liberty to recap the notices to proceed on compulsory leave issued by the defendant i.e. EXH. CW1A and EXH. CW1H.

EXH. CW1A:        TEMPORARY SHUT DOWN OF THE COMPANY AND COMPULSORY LEAVE WITHOUT PAY.

You are no doubt aware of the circumstances of the grounding of the company’s only aircraft on Friday 20th August 2010.

The company’s management has reviewed the situation most cautiously and there is no possibility of getting the said only aircraft to fly within the next two months. It has therefore become imperative to have the company suspend operation for a period of up to two months i.e. September and October 2010. In the circumstance it will be impossible for you to render your services to the company over the said period.

Therefore, you are required to proceed on compulsory leave without pay for the period that the company has suspended operation. As soon as the situation is reviewed by the management, you will be appropriately informed. Be assured that this measure “is temporal” and does not envisage permanent loss of employment. Your arrears of salaries will be settled as soon as the aircraft starts operating. Please do bear with the company in these trying times.

EXH. CW1H:       TEMPORARY SHUT DOWN OF THE COMPANY AND COMPULSORY LEAVE WITHOUT PAY.

Reference to our letters addressed to individual staff of this company dated 24th August, 2010 on the above mentioned subject.

We would like to inform you that due to none availability of aircraft for our normal operations, the company’s management has decided to extend the staff compulsory leave for a further one month without pay.

This compulsory leave shall take effect from 1st November, 2010 till 30th November, 2010.

Please do bear with us in these trying times.

In my humble view, it is clear from the above that the claimants were duly informed of the need to proceed on compulsory leave due to the reasons the defendant put forward in its letters. It is therefore the duty of the claimants to put forward evidence to prove that the defendant has resumed operation or that it has resources to pay their salaries and allowances but has only deliberately refused to so do. I do not consider the evidence put forward by the claimants to be sufficient enough to entitle them to the claims they sought for in this suit and I so hold.  The issue for determination is therefore resolved against the claimants.

The implication of all that I have said is that the Claimants have failed to establish their case by preponderance of evidence that they are entitled to the claims being sought other than a declaration that their appointment with the defendant still subsist as same have not been terminated in accordance with laid down procedures as envisaged in their respective letters of appointment.

In the case of AKANDE V. ADISA (SUPRA) @RATIO 10 @ P. 572 PARAGRAPHS F-G, it was held that “where in the evaluation of evidence and ascription of probative value, a trial court is left with scanty evidence from a party to put on his side of the imaginary scale of justice, the scale of justice can never tilt in that party’s favour”.

In view of the above I grant the first relief in the claim  and I declare that the Claimants’ appointment with the defendant still subsist having not been terminated  in accordance with laid down procedures as envisaged in their respective letters of appointment.

I have mentioned in the course of this judgment that the claimants did not place before me sufficient evidence to prove that the defendant has resumed business activities. This is very fatal to the case of the claimants. Let me reiterate that I do not have before me incontrovertible evidence that the defendant did purchase additional aircraft. The position of the defendant was that Jordan Airline operated under its licence during the period in question and that it was no longer presently in business. In my view, this can never be deemed to be an admission on the part of the defendant, contrary to what the claimant would want this court to believe.

In view of the above, reliefs 2 (A), (B), (C), (D); 3; 4 and 5 are refused and are hereby dismissed. Alternative reliefs 1 and 2 are also refused and are equally dismissed.

For clarity and avoidance of doubt, I hereby declared and ordered as follows:

  1. I declare that the appointments of the claimants with the defendant still subsist having not been terminated in accordance with laid down procedures as envisage in their respective letters of appointment or otherwise.
  2. AN ORDER of this Honourable Court directing that the defendant pay all the salaries and allowances of the claimants is refused.
  3. Interest at the rate of 20% per annum from November 2010 on the said sum of N25, 846, 866.00 until judgment and thereafter at the rate of 10% until final payment is refused.
  4. The sum of N1,000,000.00 on indemnity basis being money incurred on solicitors fees is refused.
  5. I equally refused to make any order as cost of this action in favour of the claimants.

The alternative prayers 1 and 2 are equally refused.

I make no order as to cost.

Judgment is entered accordingly

 

…………..………………………………………………………………

Hon. Justice B. A. Adejumo, OFR

President,

National Industrial Court of Nigeria

 

 

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