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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE OWERRI JUDICIAL DIVISION HOLDEN AT OWERRI BEFORE HIS LORDSHIP HON. JUSTICE O. Y. ANUWE Dated : 3rd December 2015 SUIT NO: NICN/OW/62/2014 Between: Mr. Christian Amuchie - Claimant And Rhas Nigeria Limited - Defendant Representation: P. A. Obiukwu for the Claimant K. I. Uduma for the Defendant JUDGMENT The claimant brought this action against the Defendant by way of complaint dated and filedon the 11th day of August 2014, claiming the following reliefs against the defendant: 1. A declaration that the claimant is entitled to be paid all his resignation benefits having served the company meritoriously for eight years. 2. A declaration of the Honourable Court that the continued neglect/refusal by the Defendant to pay all resignation benefits/entitlements to the claimant since two years (2012 to be precise) is illegal and unfair to the claimant. 3. An order of the Honourable Court mandating the Defendant to pay to the claimant all his resignation benefits/entitlements forth with, which is to the tune of N1,500,000.00 (One Million, Five Hundred Thousand Naira). 4. Five Million Naira (N5,000,000.00) general damages. The Claimant filed along with the Complaint, an Affidavit in verification of the endorsement of the Complaint, Statement of Facts, Witness’ deposition on oath, List of Witnesses, List of Documents and Copies of Documents to be relied upon at the trial. The Defendant on the 8th day of May 2015, vide a motion for extension of time, filed a Memorandum of Appearance, Statement of Defence, Witness deposition on oath and List of Witnesses. The Defendant had earlier on the 19th day of November 2014 filed defence processes vide a motion for extension of time which was struck out on the 25th day of February 2015 due to lack of diligence on the part of the defendant, having been consistently absent to move the motion to regularise the processes so filed. Hearing had therefore commenced on the 25th day of February 2015, and the Claimant had testified in part before the defendant on the 8th day of May 2015, filed its defence and this was duly regularised on the 12th day of May 2015. Hearing was concluded on the 10th day of June 2015, and the parties were ordered to file their final written addresses in accordance with the rules of this court, and the case was adjourned for adoption of final addresses. The Claimant filed his Final Address on the 18th day of September 2015 while the Defendant filed its address on the 28th day of September 2015. Parties adopted their respective addresses on the 30th day of September 2015. The brief statement of facts as distilled from the claimant’s final address filed on 18/9/2015 is that, the claimant served the Defendant company for eight (8) years from 2004 to 2012 as plant operator wherein the Claimant was posted to various construction sites of the Defendant. After serving the Defendant meritoriously for 8 years, he resigned his appointment. By the internal rules and regulations governing the retirement/resignation of the staff of the company, the Claimant is entitled to some retirement benefits, when the Claimant approached the personnel manager of the Defendant on several occasions to receive the said entitlements, the Defendant refused to pay the Claimant, hence this suit. Counsel raised two issues for determination, thus: 1. Whether or not the claimant has proved his case? 2. Whether or not the claimant is entitled to his claims? In arguing his first issue, counsel submitted that the Claimant has stated in his statement of facts and witness deposition on oath that he served the Defendant for eight years, (see Exhibit A & B) which the Defendant did not controvert. (See Exhibit C & C1). Counsel went further to state that it was only when the instant suit was instituted, that, the Defendant invited the Claimant for the first time for discussion where they threatened that if the Claimant refuses to withdraw the suit, that they will employ the services of a Senior Advocate of Nigeria (SAN) who will make nonsense of the Claimant's suit. See the case of Chime vs Onyia (2009) All F.W.L.R (pt. 480) 673 at 688 Ratio 32. The Defendant through their Statement of Defence, and witness deposition on oath, conceded that the Claimant is entitled to the tune of N519,042,41. (Five Hundred and Nineteen Thousand and Forty Two Naira and Forty one Kobo) only. It is trite law that the claimant can still be granted the lesser amount conceded by the Defendant. Please see the case of OZDE Distillers Ltd vs Diamond Bank Plc (2013) 26 WRN pg 181-182; line 45. Counsel contended that owing to the fact that, the Defendant delayed in disclosing and paying the Claimant his entitlements until the Claimant embarked on this rigorous process of litigation and engaging the services of a lawyer makes the case more precarious and should attract sanction and interest against the Defendant. That is to say, that the Defendant should not be allowed to evade the liability of paying damages to the Claimant because damages follow events. The claimants’ counsel is of the opinion that the defendant’s request to the claimant to collect his monetary entitlements in monthly instalments of N50,000.00 (Fifty Thousand Naira) is unacceptable because such arrangement still makes the Claimant an employee of the defendant; a position which the Claimant has long ago relinquished. Furthermore, the Defendant as a financially solvent company has paid other staff who resigned after the claimant, their entitlement. Thus, its refusal to pay the Claimant’s entitlement shows their biased treatment of the claimant. In arguing their second issue, counsel answered the question as to whether or not the claimant is entitled to his claims, in the affirmative. This is owing to the fact that, the Claimant has through his Statement of Facts and cross-examination, proved to the satisfaction of the Court that the Defendant has refused, failed and or neglected to pay him his resignation benefits/entitlements having served the Defendant for eight years. In addition to the reason that the rules and regulations governing the company on resignation/retirement of staff provide that the Claimant is entitled to some resignation/retirement benefits which the Defendant has refused to pay. Also, the Defendant, according to Counsel, contended in their Statement of Defence that the Claimant over-stated his claims. It is trite law that in the absence of any stated amount, the Claimant can claim any reasonable amount since the Defendant refused to disclose the amount due to the Claimant. More so, it is a well-known principle of law that he who asserts must prove. In the case of Chime vs Onyia (supra) (2009) All F. W. L. R (pt. 480) 673 at .688 Ratio 32, it was held that: “the burden of proof is on him who asserts to adduce in proof of that assertion, otherwise his case will fail by the provisions of section 135 and 136 of the Evidence Act, Cap 112, Laws of the Federation of Nigeria, 1990” The Claimant through his Statement of Facts and Witness Deposition on oath which was uncontroverted by the defendant, proved his case. Counsel submitted that refusing to enter judgment in favour of the claimant is tantamount to allowing the defendant to benefit from his own wrong which the law forbids. See C.D.C (NIG) LTD VS SCOA (NIG) LTD (2007) All FWLR (Pt. 363) 1 at 64-65, paras G-B Ratio 18. In the light of the foregoing, counsel urged the court to enter judgment in the Claimant’s favour. In the Defendant's Final Written Address filed on 28/9/2015, the Defendant’s counsel raised a sole issue for determination, thus: What is the claimant entitled to in this case? Counsel’s argument in support of this issue is simply that the Claimant is legitimately entitled to the sum of N519,042.41 (Five Hundred and Nineteen Thousand and Forty Two Naira and Forty one Kobo) only, as shown in the tabulated Statement of Defence, and the testimony of DW1. Also, counsel submitted that the Claimant did not proffer any materials showing his conditions of service or any staff terms of employment to warrant the total claim of N6,500,000.00 (Six Million, Five Hundred Thousand Naira). Also, the claimant voluntarily resigned from the employ of the defendant, he was not dismissed or terminated unlawfully so as to warrant any wrong doing on the part of the Defendant to justify the claim for N5,000,000.00 (Five Million Naira) in damages. The law is settled that it is only where an employee has been wrongfully terminated or dismissed that he has a remedy in a suit for damages. See the cases of: 1. OBO vs. COM OF EDUCATION BENDEL STATE (1993) 2 NWLR (Pt.273) 46 at 58. 2. OLANREWAJU vs. AFRIBANK PLC (2001) FW.L.R. (Pt.72) 2008 Ratio 8. 3. MOROHUNFOLA vs. KWARATECH (1990) 4 NWLR (Pt.145) 506. 4. OLATUBOSUN vs. NISER (1988) 3 NWLR (Pt.80) 25. It is counsel’s submission that having not wrongfully terminated or dismissed the Claimant, there is no legal basis for the claim for damages because the employment ended voluntarily with the resignation of the Claimant and the Claimant has an absolute power to resign while there is no discretion on the part of the Defendant to refuse to accept Notice thereof. See ADEFEMI vs. ABEGUNDE (2004) All FWLR (Pt.203) 210 Ratio 10. Counsel stated that the pertinent question that arises at this point is: “What has the Claimant placed before the Honourable Court to justify and prove his claim for- N 1, 500,000 (One Million, Five Hundred Thousand Naira) as his entitlements?” In answer to this question, counsel stated that in the glaring absence of any conditions of service or contract of service, the Claimant’s claim remained unsubstantiated. See INEC vs ANTHONY (2011)7 NWLR (Pt.1245) Page 1 at Page 17, Para A-B. Counsel urged the Court to award the conceded and admitted sum of indebtedness as stated by the Defendant to the Claimant and to dismiss all the other claims for being speculative, unmeritorious and gold digging. Court’s decision Upon examining of the facts pleaded by the parties, the evidence adduced in prove of the facts and the submission of the counsels in their written addresses, the simple issue, whether the claimant is entitled to be paid severance benefits, is identified by this court for determination in this suit. The complaint of the claimant in this suit is founded on the defendant’s failure to pay him his entitlement upon his resignation from the defendant’s employ. The claim of the claimant, therefore, is principally for the payment of his resignation benefits or entitlements which he put at the sum of N1,500,000.00. The claimant testified as the only witness in his case. It is his evidence that he was employed by the defendant in 2004 and served the defendant for 8 years until he voluntarily resigned from the employment in April 2012. The claimant further testified that by the rules and conditions of the service in the defendant company, he is entitled to be paid some resignation benefits but since his resignation in 2012, the defendant has refused to pay his entitlements till date despite demands made for the payment. The claimant concluded his evidence with the statement that his claims are as contained in his complaint. In its defence, the defendant admitted that the claimant was its employee for 8 years until he resigned voluntarily in 2012 but denied the claimant’s claim against it. The defendant categorically averred in paragraph 8 of the statement of defence that the claimant is not entitled to the sum claimed against the defendant. The defendant however averred that the claimant is entitled to some severance entitlements. In his evidence, DW1 stated that upon his resignation, the claimant is entitled to be paid gratuity, allowances and pension deductions which sums, according to DW1’s computation, amount to the total sum of N519,042.41. The breakdown of this sum show that N135,000.00, N210,569.49 and N173,472.92 are payable to the claimant for leave allowance, 8 years gratuity and unremitted pension respectively. DW1 explained that these sums could not be paid to the claimant because of certain financial constraints facing the defendant but the defendant had offered to pay the sums to the claimant. The claimant has shown that he is entitled to some benefits at leaving the employment which entitlement the defendant has refused to pay to him. In view of the admission by the defendant that the claimant is actually entitled to be paid some severance entitlements, a declaration that the claimant is entitled to be paid same, as sought by the claimant in relief 1, ought to be made in his favour. The issue however is on the amount of the entitlement the claimant is to be paid? Although the claimant claims the sum of N1,500,000.00 being his entitlement at the time of resignation, he however failed to prove how the sums became due or how it accrued. He merely said he was entitled to some payment without giving any evidence or fact to substantiate the sum claimed. I must say that I find no evidence from the claimant to support the sum claimed by him. The ordinary effect of such lack of proof of a claim is a dismissal of the claim but in view of the admission and concession by the defendant that it is indebted to the claimant, the interest of justice will not be served if the defendant is allowed to deny the claimant his benefits. This is more so that the defendant’s counsel, in paragraph D of his Final Written Address, has prayed this court to award the sum conceded by the Defendant to the Claimant. The claimant’s counsel too, perhaps recognising the fact that the Claimant did not establish the sum he sought, submitted in paragraph 1.02 of his address, on the authority of OZDE Distilleries Ltd vs. Diamond Bank Plc (supra), that the claimant can be granted the amount conceded by the Defendant if found not entitled to the amount he claimed. Section 14 of the National Industrial Court Act 2006 confers this court with power to grant all such remedies as any of the parties to a suit may appear to be entitled so that all matters in dispute between the parties may be completely and finally determined. In pursuance of this provision, this court is therefore inclined to consider the entitlement of the Claimant to the extent of the amount conceded by the defendant. According to the defendant’s computation, the total amount due to the Claimant is the sum of N519,042.41. This amount is awarded to the claimant. Accordingly, it is declared that the Claimant is entitled to be paid his resignation benefits and an order is made directing the defendant to pay to the Claimant, the sum of N519,042.41 (Five Hundred and Nineteen Thousand and Forty Two Naira and Forty one Kobo) only. The defendant is further ordered to pay the sum to the claimant within 30 days from today otherwise the sum shall attract 10% interest on a monthly basis until it is paid. For the avoidance of doubt, reliefs 2, 3 and 4 have not been proved and they are hereby dismissed. Parties are to bear their costs. Judgment is entered accordingly. Hon. Justice O. Y. Anuwe Judge