Download PDF
IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS BEFORE HER LORDSHIP HON. JUSTICE O.A. OBASEKI-OSAGHAE DATE: May 7, 2012 SUIT NO. NIC/LA/20/2011 BETWEEN Mr. Sunday Ossai - Claimant AND 1. Henley Industries Nigerian Ltd 2. Drury Industries - Defendants REPRESENTATION Gabriel Ojumah for the claimant. Isaac Boro for the defendants and with him is Mr O. Odogun. JUDGEMENT The claimant filed a complaint on the 11th April 2011 against the defendants claiming jointly and severally against them as follows: 1. A declaration that the claimant is entitled to benefits/entitlements having worked for the 1st and 2nd defendant for 21 years. 2. The sum of N1,725,663 (One Million Seven Hundred and Twenty five Thousand, Six Hundred and Sixty Three Naira Only) being balance of the claimant’s benefits/entitlements. 3. The sum of N1M (One Million Naira Only) being the Solicitors fees. 4. Current banking interest on N1,725,663 (One Million Seven Hundred and Twenty five Thousand, Six Hundred and Sixty – Three Naira Only) from 1st day of August 2008 until the final determination of this suit. Accompanying the complaint is the statement of claim, list of witnesses and documents to be relied on at the trial. The defendant filed its statement of defence on the 3rd November 2011 without any accompanying documents as provided in Order 9 Rule 1 of the Rules of this court. Parties joined issues and counsel elected not to call oral evidence but argue the matter on the record. Accordingly, parties were ordered to file final written addresses. The claimants final written address is dated November 23, 2011 and filed on the same day. The defendants final written address is dated 18th January 2012 and filed on the same day. The case of the claimant is that he was employed by the 2nd defendant on November 5, 1987 and later transferred to the 1st defendant which is a sister company on July 16, 2001. The claimant pleaded that he was compulsorily retired from the defendants company on 1st August 2008 and was not paid any benefits or entitlements. He pleaded that his entitlement is N2.8million and he petitioned the Nigeria Police for intervention as a result of the non payment by the defendants. He pleaded that the defendants have so far paid N1,074,337.00 (One Million, Seventy Four Thousand, Three Hundred and Thirty Seven Naira only) out of the agreed N2.8million leaving a balance of N1,725,663.00 (One Million, Seven Hundred and Twenty Five Thousand, Six Hundred and Sixty Three Naira) which they have refused to pay for three years. The defendants in their defence admits that the claimant is entitled to the sum of N2.8million as terminal benefits and that he has received payments to the tune of N1,074,337.00 leaving an outstanding balance of N1,725,663.00. The defendants pleaded that the balance has not been paid to the claimant because of the harsh economic climate. They pleaded that the 2nd defendant is the claimants employer and that this suit is unnecessary because there is no dispute between the parties as to his entitlements. The claimants counsel raised one issue for determination as follows: Whether the claimant is entitled to the reliefs sought in the circumstances. He submitted that a fact or allegation not denied is deemed to have been admitted citing Oyeniyi v Adeke [2009] All FWLR (Pt 467) 1922, Omojuyigbe v NIPOST [2010] (Pt 543) All FWLR (incomplete citation). He submitted that the defendants do not have any defence to this action as can be seen from paragraphs 1, 3 & 4 of the statement of defence. He submitted further that the averments contained in the claimants statement of claim is not challenged, denied or controverted and urged the court to hold that the claimant has established his case and is entitled to the reliefs sought. He submitted that the defendants refusal to pay the claimant his entitlements for three years after the claimant served the defendants for 21 years is unacceptable and amounts to an unfair labour practice. He submitted that the claimant is entitled to his severance benefits and that the court must intervene to protect his right citing Obeya Memorial Hospital v A.G. Federation [1987] 3 NWLR (Pt 60) 325. He finally urged the court to grant the claimants claims. In its written address, counsel to the defendants did not submit any issues for determination. He stated that the claimant has not tendered his letter of employment to enable the court determine who is employer is, and the length of time he served either the 1st or 2nd defendant. He submitted that an employee is only entitled to his salary and other emoluments due to him at the time his employment was terminated citing Evans Brothers (Nig) Publishers v Falaiye [2003] FWLR (Pt 152) 15. It was his contention that the claimant has not pleaded his last salary nor established how his entitlement was computed. He argued that the claimant did not plead whether the termination of his employment was lawful or unlawful. He submitted that the claimants case is not properly constituted and that it must fail because the claims cannot be predicated on the weakness of the defence but on its own case citing Kodinlinye v Mbanefo Odu 2 WACA 336 at 337, Mogaji & ors v Cadbury Fry (Export) Ltd & Anor [1985] 2 NWLR (Pt 7) 393 at 429. He submitted that the claimants counsel is not entitled to any fees and urged the court to dismiss the case in its entirety. I have carefully considered the processes filed, the written submissions and authorities cited. The issue to be resolved is whether or not the claimant is entitled to judgement from the evidence before the court. In this regard paragraphs 1 to 15 of the statement of claim and paragraphs 1 to 4.6 of the statement of defence are reproduced. STATEMENT OF CLAIM 1. That claimant is a Nigerian Citizen. 2. That the 1st and 2nd defendants is a private limited company owned by Indian national and incorporated under Nigerian law. Engages in the production of sodium silicate plant and sulfonic acid respectively. 3. That the 2nd defendant employed the claimant on the 5th day of November 1987. The letter of appointment dated 5th of November 1987 is hereby pleaded. 4. That the claimant has held several positions in the 2nd defendant’s company. 5. That the claimant was later transferred to the 1st defendant company, which is a sister company to the 2nd defendant. The memo of transfer dated 16th of July 2001 is hereby pleaded. 6. The claimant avers that he has worked meriteously without complain for the 1st and 2nd defendant for 21 years. The letter of promotion and special increment is hereby pleaded. 7. The claimant states that on the 1st of August 2008 he was compulsorily retired from the services of the defendant’s company. The letter of termination of appointment dated 1st of August 2008 is hereby pleaded. 8. That upon the termination of his appointment he is entitled to be paid N2.8 Million Naira. 9. That he was not paid any benefits or entitlements. 10. The claimant avers that he has suffered as a result of non-payment of his benefits or entitlement by the 1st and 2nd defendants. 11. The claimant avers that he had to petition the 1st and 2nd defendant to the D.P.O Agbara Police Station and the Commissioner of Police Ikeja Command respectively. Copies of the petition are hereby pleaded. 12. That the last payment as agreed was made on October 1st 2010 on the intervention of the Nigerian Police Force. 13. That the 1st and 2nd defendants so far had paid the sum of N1,074,337 (One Million, Seventy Four Thousand Three Hundred and Thirty – Seven Naira Only) out of the agreed N2.8 Million Naira balancing N1,725,663 (One Million, Seven Hundred and Twenty Five Thousand, Six Hundred and Sixty – Three Naira Only) which the 1st and 2nd defendants company have refused, neglected and failed to pay since 3 years now. 14. Claimant states further that he has made several representation all to no avail. 15. The claimant states that his Lawyer Barrister Gabriel Ojumah Esq. wrote to the 1st and 2nd defendants for them to see reason but they refused to listen. Copy of the letter dated 9th of March is hereby pleaded. STATEMENT OF DEFENCE 1. The defendants admit paragraphs 1,2,3,4,5,6,7,8,11,13 and 15 of the statement of claim. 2. The defendants deny paragraphs 9, 10, and 14 of the statement of claim. 3. The defendants admit paragraph 12 of the statement of claim to the extent that the claimant was paid part of his outstanding benefit on 1/10/2010. The defendants deny that the payment was at the instance of the Nigerian Police Force. 4. In answer to paragraphs 9, 10 and 14 of the statement of claim the defendants aver as follows: 4.1. That it is not in dispute that the claimant is entitled to the sum of N2.8m sequel to the termination of his appointment on 1/8/2008. 4.2. That the claimant has been receiving payments from the defendants up to and including 1/10/2010 to the tune of N1,074,337.00 leaving an outstanding balance of N1,725,663.00. 4.3. That the outstanding balance has not been paid to the claimant because of the harsh economic climate in Nigeria under which businesses are not thriving to the knowledge of everyone including the claimant. 4.4. That this suit is unnecessary and unreasonable because there is no dispute between the claimant and the defendants as to his entitlement following after the termination of his appointment. 4.5. That the claimants employer is the 2nd defendant and none other. 4.6. That the claimant’s Solicitor is not entitled to cost as he has not properly advised the claimant. From the statement of defence, particularly paragraphs 1, 3, 4.1, 4.2, 4.3, the defendants have admitted that the claimant was their employee, from 5th November 1987 till 1st August 2008 when he was compulsorily retired. They have also admitted that he is entitled to the sum of N2.8 million as terminal benefits and that they are still indebted to the claimant in the sum of N1,725,663.00 being the outstanding balance of his terminal benefits which they have refused to pay for 3 years. It is trite law that there is no burden incumbent upon a party to prove facts which have been admitted by the adversary party See section 123 of the Evidence Act 2011, Alagbe v Abimbola [1978] 2 SC 39, Tijani Jolasun v Napoleon Bamgboye [2010] 18 NWLR (Pt 1225) 285. In this wise therefore, I hold that the claimant is entitled to judgement. I hereby declare and make the following orders: (1) The claimant is entitled to terminal benefits/entitlements having worked for the defendants for 21 years. (2) The sum of N1,725,663.00 (One Million, Seven Hundred and Twenty Five Thousand, Six Hundred and Sixty Three Naira Only) being the balance of the claimant’s terminal benefits/entitlements plus interest at the rate of 20% per annum from 1st August 2008 till the date of this judgement is to be paid to the claimant by the defendants. (3) This sum is to be paid within 14 days from the date of this judgement. I award in favour of the claimant costs of N50,000.00 to be paid by the defendants. Judgement is entered accordingly. ……………………..……………… Hon. Justice O.A. Obaseki-Osaghae