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REPRESENTATION E. AKPAMA for the claimant E. L. AKPAMA and C. A. C EFIFIE for the defendants JUDGEMENT The Claimant instituted this action via a Complaint with the accompanying frontloaded documents filed on 6th November, 2013 against the defendants for the following reliefs: 1. A DECLARATION that the claimant was employed between February, 2008 to February, 2012 and as such entitled to his full salaries and allowances. 2. A DECLARATION that the short payment of his entitlements and fringe benefits are wrongful in law. 3. A DECLARATION that the claimant is entitled to 5% of basic annual salary of #780,000 for 48 months (at #39,000 per year) as leave allowance. 4. A DECLARATION that the non-payment of the claimant’s leave allowance is wrongful in law. 5. A DECLARATION that the defendant is indebted to the claimant in the sum of #871,000 (Eight Hundred and Seventy One Thousand Naira only). 6. An order directing the defendant to pay the claimant the total sum of #156,000 (One Hundred and Fifty Six Thousand Naira only) being his leave allowance for 4 years at #39,000 (Thirty Nine Thousand Naira only per year), and his arrears of salaries/allowances #715,000 (Seven Hundred and Fifteen Thousand Naira only). 7. The sum of #300, 000 as cost of the action. The claimant case is that he, the claimant, was a staff and employee of the defendant for four years when the defendant stopped paying his salary in April, 2011, while the claimant worked with the defendant till February, 2012, before he tendered his letter of resignation in October, 2011. It is upon the non-payment of salaries and leave allowances for eleven (11) months that the claimant resigned and filed this action in order to be paid his outstanding. The defendants filed their STATEMENT OF DEFENCE which was dated and filed on 14th February, 2014 The case of the defendant is the claimant’s salary as a furniture maker in the defendant’s employ was Sixty Thousand Naira (#60,000.00) only from February to October, 2008 and Sixty Five Thousand Naira (#65,000.00) only from November, 2008 to 1st November, 2011, when the claimant voluntarily resigned his appointment from the defendant’s employ. Defendant pleaded that the claimant was paid all his salaries and allowances for the months of November, 2008 to March, 2011. Furthermore, that the claimant is owed salary from April, 2011 to October, 2011, and that from November, 2011, the claimant was no longer a staff of the company. The defendant pleaded that all allowance due to the claimant have been paid to him, except the salaries referred to above. The Defendant maintained that the claimant is not entitled to any of the reliefs contained in paragraph 12 (i-v) or anywhere recited, urging the Court to dismiss this action with cost. The claimants in response filed a REPLY TO DEFENDANT’S STATEMENT OF DEFENCE which was dated and filed on 3rd June, 2014. The claimant stated that his salary was #65,000.00 from November, 2008 to February, 2012, when he executed the last job orders for the defendant. And that he was never paid his leave allowance alongside salaries from February, 2008 to March, 2011 and that the defendant also refused to pay salaries and leave allowances from April, 2011 to February, 2012. The Claimant denied paragraph 5 of the Statement of Defence as false and misleading, as claimant’s resignation letter which the defendant refused to act on was dated 1st November, 2011 and that the claimant remained in the defendant’s employ till February, 2012. The claimant in denying paragraph 7 of the Statement of Defence, stated that defendant has not shown any evidence of administrative steps taken against claimant’s purported inefficiency, ineptitude, laziness and sheer dereliction of duty. The Claimant pleaded that paragraph 8 of the Statement of Defence is a complete misrepresentation of his work performance as his efficiency led to claimant permanent appointment offer after the probationary period and subsequent salary rise from #60,000.00 to #65,000.00 as contained in his letter of confirmation of appointment dated 21st December, 2008. The trial commenced on the 3rd June 2015 with the claimant testifying as CW adopted his statements on oath of 6th November 2013 and 3rd June 2014 and 10 other exhibits A. Under cross examination CW testified that he reigned his appointment given one month’s notice based on the company’s law acknowledging the provision on notice and notice in lieu was not part of the condition of service. He further testified that his basic salary was N30, 000.00 and the complete salary was N65, 000.00 and that he calculated his leave allowance on the basis of his basic salary of N30, 000.00. CW further acknowledged that in his claim before the court he had not made any deductions or provisions for or with regards to taxation. The defendants called One Onyinye Onyekwere an IT Consultant who testified as DW, adopted his statement on oath of 14th February 2014 which was marked D1. DW testified that the claimant was a hard working staff, the Furniture Operations Manager and was only owed salary from April 2011 to October 2011 and was entitled to 5% of his basic salary per annum as Leave allowance. DW further testified that although he no longer works with the defendant he remains one of the Directors of the company and was testifying in that capacity. With regard to Exhibit C14 DW testimony identified them as a memo looking like something the defendants uses but that anyone could produce this, testifying further that the company uses a book for their work order that way one can see who authorizes the work to be done. Trial ended on the 22nd October 2015 and parties were directed to file their final written addresses in line with the provisions of Or. 19 rule 13 of the National Industrial Court Rules. 2007. S/N TENDER BY NICN/CA/163/2013 DOCUMENTS DATED DATE TENDER MARK 1. Claimant Counsel Witness on oath 3/6/2015 CW 2. Written statement on oath 6/11/2013 “ “ C1 3. Additional statement 3/6/2014 “ “ | C2 4. Letter of appointment 1/2/2003 “ “ C3 5. Confirmation of appointment 12/12/2008 “ “ C4 6. 7. Payment slip from Feb. –March “ “ C6 8. Resignation of appointment 1.11.2011 “ “ C7 9. Resignation of appointment 24/2/12 “ “ C8 10. Outstanding arrears of sal 14/9/2012 “ “ C9 11. Refusal to pay all outstanding 16/10/2012 “ “ C10 12. Re: non-payment of salary 11/1/2/2012 “ “ C11 13. Appreciation letter 18/9/2013 “ “ C12 14. Conditions of employment “ “ C13 Defendant counsel Witness on oath 22/10/15 DW Written statement on oath 14/02/14 “ “ D1 On the 26th January the claimants where in court and the defendants were absent. The claimant informed the court that they were ready to file their final written address but that the defendants were yet to file the defendant’s final written address. The claimant further informed the court that they, the claimant would file their address before the next adjourned date, the court ordered hearing notices to be served in the defendant for the adoption of written address on the 11th February 2016. On that day once more the claimant was in court and the defendant was absent. The matter was further adjourned to 3rd March 2016 when the claimants with leave of court adopted their final address and the matter was adjourned for judgment. The CLAIMANT’S FINAL WRITTEN ADDRESS dated 3rd February, 2016 and filed on 4th February, 2016. Wherein the claimant formulated one sole ISSUE Whether the claimant has proved his case against the defendant? Responding in the affirmative, Learned Counsel for the claimant Emmanuel Akpama Esq. submitted that the defendant in paragraph 9 of his Written Statement on Oath admitted owing the claimant for seven months between the months of April, 2011 to October, 2011 at #65,000.00 each month, therefore, that admitted facts on the pleadings requires no further proof at the hearing. OWUNO v. COMM. OF POLICE, KADUNA STATE (2012) ALL FWLR (PT. 633) 1875 HELD 12; OLALE v. EKWELENDU (1989) 7 SCNJ 181; (1989) 4 NWLR (PT. 115) 326. The Court’s Decision Having carefully summarized the evidence of both sides, the arguments of opposing counsel and having carefully reviewed all the authorities cited, read through all the relevant processes and digested the contention of the parties as well as the written submission of the claimant are all herewith incorporated in this judgement and specific mention would be made to them where the need arises. The issue for determination in this suit to my mind is the issue as formulated by the claimant i.e. whether the claimant has proved his case against the defendant. The defendants in this matter participated in the trial but failed to file a final written address. After three adjournments and being satisfied that the defendants were served with the respective hearing notices and the claimants final written address this court allowed the claimant adopt his final written address foreclosing the defendant from filing theirs and went on to reserve this matter for judgement. In doing so this Court takes cognizance of the position of the law which is that the purpose of an address by a party is to let the Court and his adversary know what his summing up is on the facts and the law as revealed by the evidence before the Court. See the case of OGBODU Vs. OLOMU & ANOR [1987] LPELR 2189 SC. As per Belgore JSC (p12, para B). And in DONATUS NDU Vs. STATE [1990] 11-12 SC 122. The Apex court held that “it is optional for a Counsel to address or not to address the court at the conclusion of the hearing of evidence……His failing to perform this task does not vitiate the proceedings.” Also in SEGUN OGUNSANAYA Vs. THE STATE [2011] 6-7- SC (Pt. II) 56 the Supreme Court held that the “Failure to address will not be fatal or cause a miscarriage of justice. This is so because whether the counsel address the court or not the court must do its own research with the sole aim of seeking the truth and determining which side is entitled to judgement. The court cannot wait indefinitely for an unwilling litigant. The issue before the court is whether the claimant is entitled to the reliefs he has sought, i.e. proved his case against the defendant for avoidance of doubt the claimants reliefs are as follows;- 1. A DECLARATION that the claimant was employed between February,2008 to February, 2012 and as such entitled to his full salaries and allowances. 2. A DECLARATION that the short payment of his entitlements and fringe benefits are wrongful in law. 3. A DECLARATION that the claimant is entitled to 5% of basic annual salary of #780,000 for 48 months (at #39,000 per year) as leave allowance. 4. A DECLARATION that the non-payment of the claimant’s leave allowance is wrongful in law. 5. A DECLARATION that the defendant is indebted to the claimant in the sum of #871,000 (Eight Hundred and Seventy One Thousand Naira only). 6. An order directing the defendant to pay the claimant the total sum of #156,000 (One Hundred and Fifty Six Thousand Naira only) being his leave allowance for 4 years at #39,000 (Thirty Nine Thousand Naira only per year), and his arrears of salaries/allowances #715,000 (Seven Hundred and Fifteen Thousand Naira only). 7. The sum of #300, 000 as cost of the action. The legal position is that the claimant must prove his case as far as the evidentiary burden lies on him and cannot rely on the weakness of the defendants’ case. See LAWRENCE AZENABOR Vs. BAYEREO UNOVERSITY KANO [2011] 25 NLLR (PT. 70) CA at 69 and OGUNYADE Vs. OSUNKEYE [2007] 15 NWLR (Pt. 1057) at 247” Bearing in mind that the position of the law under our adjectival and substantive law of evidence remains that 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, and the burden of proof in a suit lies on that person who would fail if no evidence is given on either side, citing sections 131 and 132 of the Evidence Act 2011. In this case, that the onus of proof in civil cases lies on the claimant to satisfy the Court that he is entitled on the evidence adduced by him to the claim he asserts and he must rely on the strength of his own case and not on the weakness of the defence, see also the case of IRONBAR Vs. CROSS RIVER BASIN AND RURAL DEVELOPMENT AUTHORITY [2004] 2 NWLR (PT. 857) 411 AT 434. What all that means is that that he who avers must prove. OLANIYAN & ORS Vs. UNIVERSITY OF LAGOS &ORS 2NWLR (Pt.9) 599. One who alleges must prove. Relief 1 is for a declaration as to the duration of the claimants appointment. Both parties in their pleadings agreed that the claimant commenced work with the defendants in February 2008, the only issue in contention is the end date of the claimants employment whereas the claimant maintains he left the defendants employ in February 2012 the defendants insist that the claimants employment ended when he tendered his letter of resignation Exhibit C7 which was dated 1st November 2011. The crux of the dispute is the one month notice given to the defendant in Exhibit C7 which the defendant claim was outside the terms of their conditions of service Exhibit C13. Article 10 of Exhibit C13 which deals with cessation of employment states that “The employment of an employee shall cease on the following circumstances a) Resignation of the Employee b) Retirement of the employee due to his having attained the age of 60 years. c) Termination of employment…. d) Summary Dismissal …… Nowhere in the Exhibit C13 is there a requirement for the employee to work out one months notice nor pay one month salary in advance. The claimant had contended that under company law or the company’s law he was required to give a month’s notice but did not bring to the court any evidence of such a law. Even customs or trade practices are required to be proven by evidence. See the case of DANIELS Vs. SHELL BP. PET. DEV CO. [1962]1 All NLR 19 where it was held that “in the absence of a written contract of employment recourse may be had to relevant trade custom and practice”. See section 16(1) Evidence Act 2011and the burden of proving this existence of this customs lies on the person alleging its existence See Section 16(2) Evidence Act 2011. The claimant also tendered Exhibit C14 as evidence of work he did for the defendants in February 2012 but DW under cross examination countered these documents as not being a job orders although similar to what the defendant used but that the defendant used a book where in one could see who ordered the work. At this stage I find that there is insufficient evidence to hold that the claimant worked for the defendant beyond November 2011. This relief succeeds in part. The claimant in relief 2 is seeking a declaration on the lawfulness of the short payment to his entitlements and fringe benefits. The claimant led no evidence and made no specific pleading as to these short payments or deduction in which instance this relief is deemed abandoned and cannot be granted. Reliefs 3, 4 and 6 are for declarations that the claimant is entitled to 5% of basic annual salary of #780,000 for 48 months (at #39,000 per year) as leave allowance and that the non payment of the said leave allowance was wrongful and an order that the defendant pay same respectively. See Exhibit C13 Article 4.c), the provision states, Annual Leave Allowance “This is payable when the employee is proceeding on his annual leave at the rate of 5% of his annual basic salary” In averment 9 the claimant states that he is entitled to 24 working days leave and leave allowance for the 4 years of his employment which remained unpaid. Now the claimant has adduced no evidence that he had proceeded on leave within for 4 years to be entitled to the said leave allowance. The defendants in their statement of defence made no specific mention of whether or not the claimant was ever paid or not entitled to annual leave allowance. The defendants stated in paragraph 6 that all the allowances owed to the claimant had been paid to him. The defendants did not tender any voucher showing that the claimant was paid any leave allowance. The general traverse that the claimant in not entitled to any of the reliefs contained in the para 12i-v) or anywhere recited and will at the trial urge the court to….. does not meet the mark. Especially as the position of the law as regards proper travers is that an evasive, vague, bogus or general denial, a mere denial of a detailed, factual situation without attacking the veracity of the details, a traverse that the defendant denies a named paragraph of the statement of claim but shall at the trial require the plaintiff to strictly prove the averments contained therein, all do not amount to a denial for the purpose of raising an issue for trial. If anything, they all amount to an admission. See EL-TIJANI V. SAIDU [1993] 1 NWLR (PT. 268) 246; JACOBSON ENGINEERING LTD V. UBA LTD [1993] 3 NWLR (PT. 183) 586; LEWIS & PEAT (NRI) LTD V. AKHIMIEN [1976] 1 ALL NLR (PT. 1) 460; UBA LTD V. EDET [1993] 4 NWLR (PT. 287) 288; OHIARI V. AKABEZE [1992] 2 NWLR (PT. 221) 1; LSDPC V. BANIRE [1992] 5 NWLR (PT. 243) 620; DIKWA V. MODU [1993] 3 NWLR (PT. 280) 170; SANUSI V. MAKINDE [1994] 5 NWLR (PT. 343) 214; EKWEALOR V. OBASI [1990] 2 NWLR (PT. 131) 231 and IDAAYOR V. TIGIDAM [1995] 7 NWLR (PT. 377) 359. I find therefore that the claimant is entitled to his leave allowance for the 4 years he worked. And that the non payment of such was contrary to the contract of employment and therefore wrongful and a breach of the Exhibit C13. The defendant is indebted to the claimant for the 5% of the claimants basic salary of N30,000 monthly as by Exhibit C6 the claimants basic salary as at the time of the resignation was N30, 000.00 monthly. Now this multiplied by 12 months =360, 000.00 x5 = 18, 000.00 for the 4 years = N72, 000.00. Relief 5 is for a declaration that the defendant is indebted to the claimant in the sum of #871,000 (Eight Hundred and Seventy One Thousand Naira only). The claimant is asking the court to declare that the claimant is owed the sum of N871,000 (Eight Hundred and Seventy One Thousand Naira only being the total sum of N156,000 (One Hundred and Fifty Six Thousand Naira only) his leave allowance for 4 years at N39,000 (Thirty Nine Thousand Naira only per year), and his arrears of salaries/allowances N715,000 (Seven Hundred and Fifteen Thousand Naira only). The defendants have admitted owing the claimant seven month’s salary, whether this admission was the rationale behind this claim for 7 months being the only aspect of the claimant’s case, his counsel decided to put forward before the court in his final address, leaves a lot to be desired. The claimant came to court with 6 reliefs and in the final address the claimant counsel only chose to make a case only on the minuscule aspect the defendants admitted. Bearing in mind the purport of the final address one would have expected the claimants counsel to advance submissions on all the claimant’s reliefs. Is the court to determine that the claimant had abandoned all other reliefs based on the tenor of the counsel’s address. Now the defendant have admitted owing the claimant and position of the law is well stated in the case of OVERLAND AIRWAYS LIMITED v. AFOLAYAN (2015) 52 NLLR (PT. 174) 214 NIC @ 224 The courts view the employer’s obligation in respect of payment of wages as a key element of the employment contract. “in reality it is difficult to exaggerate the crucial importance of pay in any contract of employment. In simple terms, the employee offers his skills and efforts in exchange for his pay: that is the understanding at the heart of the contractual arrangement between him and his employer”… The fact that an employer may have good reason for failing to make payment in accordance with the terms of the contract is irrelevant. Despite the position of the law the claimant has not asked this court for any damages for the delay in paying the claimants salaries and the court cannot grant reliefs not sought I have already found that the claimant is entitled to N72, 000.00 (Seventy Two Thousand Naira) as leave allowance the defendant had admitted that they owe the claimant salary for seven months April 2011- October 2011. In view of the fact that the claimant was unable to satisfy the court that the work, if any, it performed in the premises of the defendant after the end of the October 2011 was covered by the contract, I find that the claimant and I agree with the defendants that the claimant’s employment ended on 1st November 2011. I am aware that letters of retirement take effect from the day they are served on the employer yet there is nothing before the court as to when the claimant served Exhibit C7 on the defendant hence the recourse of the date of the said letter. The claimant monthly salary has been proved to be N65, 000.00 monthly See Exhibit C6, and for the period of seven months I find that the claimant is entitled to N455. 000.00, as salary and allowances for the months of April 2011 to October 2011. I find that the claimants are entitled to the sum of N72, 000.00 + N455, 000.00 = N527,000.00 (Five Hundred and Twenty Seven Thousand Naira Only). Relief 6 is for the sum of N300, 000 as cost of the action. By the case of ILUPEJU v. PZ CUSSONS NIGERIA (2014) 47 (PT. 152) 266 NIC @ 274 the award of Cost is discretionary and follows the event. MOBIL PROD. UNLTD. V. MONOKPO (NO. 2) (2001) FWLR (PT. 78) 1210; WORNO v. UAC LTD. (1956) 1 FSC 33 @ 34. For avoidance of doubt the case of the claimant succeeds but only thus far; 1. It is hereby declared that the claimant was employed by the defendants between February,2008 to October, 2011 and as such entitled to his full salaries and allowances. 2. It is hereby declared that the claimant is entitled to 5% of basic annual salary of #360,000 for 48 months (at N18, 000 per year) as leave allowance that the non-payment of the claimant’s leave allowance is wrongful and a breach of the claimants contract. 3. The defendant is indebted to the claimant in the sum of N527,000.00 (Five Hundred and Twenty Seven Thousand Naira Only). 4. By order of this court the defendant shall pay the claimant the total sum of N72,000 (Seventy –Two Thousand Naira only) being his leave allowance for 4 years at #18,000 (Eighteen Thousand Naira only per year), and his arrears of salaries/allowances N455, 000.00 (For Hundred and Fifty-Five Thousand Naira Only).. 5. The cost of the action is put at N200, 000.00 (Two Hundred Thousand Only) payable by the defendant to the claimant. 6. All sums payable by the defendant within 30 days thereafter interest at the rate of 10% in inure until the sum is liquidated. This is the court’s judgement and it is entered accordingly …………………………………………… Hon. Justice E. N. Agbakoba Presiding Judge Calabar Division